United States v. Richard Cleveland Crook

936 F.2d 1012
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 9, 1991
Docket90-2686
StatusPublished
Cited by13 cases

This text of 936 F.2d 1012 (United States v. Richard Cleveland Crook) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Richard Cleveland Crook, 936 F.2d 1012 (8th Cir. 1991).

Opinion

JOHN W. PECK, Senior Circuit Judge.

Appellant Richard Crook appeals from a judgment in the district court 1 for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Crook contends that the district court erred in denying his motion for a mid-trial Franks hearing and allowing the Government to introduce into evidence a videotape of a prior unrelated drug transaction. For the reasons stated below, we affirm.

I. BACKGROUND

On December 13, 1989, Ken Duckworth, a confidential informant, went to Appellant Richard Crook’s trailer to make a controlled purchase of methamphetamine. Duckworth wore a body transmitter during the encounter. Because Crook’s trailer was near the end of a dead-end lane, the surveilling police officers had to park their car a good distance away from the site to avoid detection. Reception from the body transmitter was poor. After Duckworth returned from Crook’s residence, he was interviewed by Investigator Robert Gibbs. Shortly thereafter, Gibbs executed an affidavit of probable cause to obtain a search warrant for Crook’s residence. The affidavit stated that Gibbs had overheard a male question Duckworth about wearing a surveillance microphone, a discussion about the purchase of an ounce of methamphetamine, and the counting of money for the purchase underway. Additionally, the affidavit stated that Duckworth had told Gibbs that Crook met him upon arrival, produced two bags of drugs from his pocket, and *1014 took Duckworth to a small frame house across the street from the trailer to weigh the drugs. On the basis of the affidavit, a search warrant was executed. Among the items seized from the master bedroom and bathroom of Crook’s trailer were 294 grams of methamphetamine, a scale, a box of baggies, and $800 including $530 of the $550 that had been provided to Duckworth for the earlier drug purchase.

Crook was indicted on March 19,1990 for one count of distribution of methamphetamine and one count of possession of methamphetamine with intent to distribute. At the trial, it became apparent that much of the tape made from Duckworth’s body transmitter was unintelligible. Additionally, Duckworth testified that he did not tell Gibbs about going to the frame house to weigh the drugs and then returning to the trailer to consummate the purchase. Defense counsel made a motion for a Franks hearing on the grounds that Duckworth’s testimony showed that the affidavit for the search warrant contained false information. The trial court denied the motion. Additionally, over a defense objection, the Government introduced into evidence a videotape of an earlier, unrelated drug transaction for the purpose of showing Crook’s knowledge. Crook contended that the person in the videotape was not he, but his brother. Crook was convicted of one count of possession with intent to distribute methamphetamine. He was sentenced to 63 months in prison. He appealed the conviction to this court.

II. FRANKS HEARING

On appeal, Crook contends that the district court erred in denying his motion for a Franks hearing. The Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), held:

[Wjhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.

The Court stated further that there is a presumption of validity with respect to the affidavit supporting the search warrant. Id. at 171, 98 S.Ct. at 2684. Allegations of deliberate falsehood or reckless disregard must be accompanied by an offer of proof. Id. Allegations of negligence or innocent mistake are not sufficient. Id. Furthermore, if after setting aside the contested allegations, there is sufficient content in the affidavit to support a finding of probable cause, no hearing is required. Id. at 171-72, 98 S.Ct. at 2684.

This court has stated that the substan-tiality requirement for a Franks hearing is not lightly met. United States v. Wajda, 810 F.2d 754, 759 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). Even where defendants have clearly identified the allegedly false portions of the warrant affidavit and provided affidavits as to their falsity, this court has upheld the denial of a Franks hearing where the defendant has failed to offer proof of the affiant’s recklessness or deliberate falsehood. United States v. Streeter, 907 F.2d 781, 788 (8th Cir.1990) (defendant’s claim inadequate due to lack of proof of affiant’s recklessness or deliberate falsehood which would raise allegations above a claim of negligence); United States v. Bulgatz, 693 F.2d 728, 732 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 444 (1983) (because defendant failed to offer proof that the misstatement in the affidavit was reckless or deliberate, conditions for a Franks hearing were not met).

In the present case, Crook has made no offer of proof as to Investigator Gibbs’ alleged intentional falsity or reckless disregard for the truth. Thus, he has not met the requirements for a Franks hearing. Even if Crook had made such a showing, the contested statements concern details of the drug transaction, such as whether Crook met Duckworth immediately upon arrival, whether Crook questioned Duck-worth about wearing a body transmitter, whether the transaction took place in the *1015 trailer or the frame house, etc. Despite these discrepancies, the basic facts alleged in the warrant affidavit — that Crook sold methamphetamine to Duckworth and that the drugs were obtained from the trailer— are not contested. Thus, even after omitting the contested statements, the warrant affidavit contains sufficient facts to establish probable cause for the search of the trailer. Accordingly, we conclude that the district court did not err in denying Crook’s motion for a Franks hearing.

III. ADMISSION OF THE VIDEOTAPE

Federal Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs, or bad acts to prove the character of a person and action in conformity therewith. However, it is admissible to prove knowledge, intent, motive, etc.

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936 F.2d 1012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-cleveland-crook-ca8-1991.