May 21, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1018 UNITED STATES OF AMERICA,
Appellee,
v.
RICKIE ALBERT SCALIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Friedman,* Senior Circuit Judge,
and Cyr, Circuit Judge.
James Michael Merberg with whom Susan J. Naughton was on brief
for appellant. F. Mark Terison, Assistant United States Attorney, with whom
Richard S. Cohen, United States Attorney, and Jonathan R. Chapman,
Assistant United States Attorney, were on brief for appellee.
May 21, 1993
*Of the Federal Circuit, sitting by designation. CYR, Circuit Judge. Appellant Rickie Albert Scalia CYR, Circuit Judge.
entered a conditional guilty plea, see Fed. R. Crim. P. 11(a)(2),
following the district court's denial of his motion to suppress
evidence seized from his residence pursuant to a search warrant.
He now appeals, see id., his conviction for unlawful "manufac-
ture" of marijuana, 21 U.S.C. 841(a)(1); 18 U.S.C. 2, and a
criminal forfeiture conviction under 21 U.S.C. 853. Scalia
also challenges the mandatory minimum five-year sentence imposed
pursuant to 21 U.S.C. 841(b)(1)(B)(vii) (minimum sentence of
five years for "manufacture" of one hundred or more marijuana
plants). Scalia contends that the affidavit supporting the
search warrant application was insufficient to establish probable
cause, and that the district court lacked sufficient reliable
evidence on which to find that more than one hundred marijuana
plants were seized from his residence. Finding no error, we
affirm.
A. Probable Cause
On February 14, 1992, Agent Kenneth MacMaster of the
Maine Bureau of Intergovernmental Drug Enforcement (BIDE) applied
for a state court warrant to search appellant's residence for
marijuana and related paraphernalia. MacMaster's supporting
affidavit relied upon, inter alia, information provided by a
confidential informant described as a "young concerned citizen."
The informant told MacMaster that he had visited the Scalia
residence on numerous occasions and as recently as ten days
before coming to MacMaster. The informant said that he had
observed two marijuana plants a foot tall in appellant's living
room, five eighteen-inch plants in the bedroom, and from forty-
five to fifty plants of various sizes in a basement walk-in
cooler. The informant told MacMaster that s/he was able to
recognize the plants because s/he had "received instruction from
his/her school concerning various drugs," and that some of the
informant's family and friends were casual marijuana users. The
marijuana plants in the walk-in cooler were being grown under
artificial lights operated by switches installed outside the
padlocked cooler door. The informant observed that other rooms
in appellant's residence and rooms in an adjacent horse barn were
padlocked as well, and that Scalia kept several shotguns and a
handgun on the premises. On at least four occasions, the infor-
mant observed Scalia selling marijuana at either his residence or
his business premises.
The primary contention Scalia makes on appeal is that
the MacMaster affidavit did not establish the reliability and
veracity of the informant because (1) MacMaster did not explicit-
ly attest that the informant had no prior criminal record; (2)
the informant apparently had not provided information to law
enforcement officials previously; and (3) MacMaster did not
attempt to corroborate the informant's tip through follow-up
surveillance efforts at appellant's residence.1
We review the issuance of a search warrant with "great
deference," United States v. Ciampa, 793 F.2d 19, 22 (1st Cir.
1986), to verify that there existed a "substantial basis" for the
judicial officer's common-sense determination that, "given all
the circumstances set forth in the affidavit . . . , including
the 'veracity' and 'basis of knowledge' of persons supplying
hearsay information, there [was] a fair probability that contra-
band or evidence of a crime [would] be found in a particular
place." United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.
1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).
The MacMaster affidavit stated that the informant was
"not currently facing any criminal or juvenile charges nor is
he/she under suspicion for any wrongdoing." (Emphasis added.)
Appellant first suggests that MacMaster's use of the word "cur-
rently" was deliberate wordplay a statement which was techni-
cally true but designed to camouflage the fact that the informant
had confronted criminal or juvenile charges in the past. Gener-
1Appellant likewise contends that the affidavit heavily depended on "stale" evidence, namely DEA and BIDE debriefing interviews with appellant's alleged associates implicating appellant in similar drug trafficking activities as far back as 1986-87. As the recent informa- tion provided by the informant was sufficient to establish probable cause, we need not address the "staleness" claim. See United States
v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992) ("Staleness does not
undermine the probable cause determination if the affidavit contains information that updates, substantiates, or corroborates the stale material."), cert. denied, 113 S. Ct. 1382 (1993).
ally speaking, the representations contained in a search warrant
affidavit are presumed valid and truthful. United States v.
Spinosa, 982 F.2d 620, 626 (1st Cir. 1992). To mount an effec-
tive challenge based on an alleged use of deliberate or reckless
falsehoods by an affiant, a defendant must request an evidentiary
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). A
Franks hearing is required only if the defendant makes a "sub-
stantial preliminary showing (1) that a false statement in the
affidavit has been made knowingly and intentionally, and (2) that
the false statement is necessary for the finding of probable
cause." United States v. Paradis, 802 F.2d 553, 558 (1st Cir.
1986). The defendant's offer of proof must be "more than con-
clusory" and should be supported by "[a]ffidavits or sworn or
otherwise reliable statements of witnesses." Franks, 438 U.S. at
171. A comparable showing is required if the defendant would
establish that technically accurate statements by an affiant have
been rendered misleading by material omissions. See United
States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied, 491
U.S. 908 (1989).
Appellant neither requested a Franks hearing nor
attempted an offer of proof relating to any material omission
from the MacMaster affidavit. Moreover, on appeal there has been
no showing that the informant ever had a criminal or juvenile
record, or any other involvement with the law, which might
undermine the reliability of the affidavit. We therefore find no
basis for concluding that the informant had a prior record.
Next, appellant suggests that the reliability of first-
time information provided by a "concerned citizen" should be
considered inherently suspect, since law enforcement officials
can have had no "track record" against which to assess the
informant's competence to convey accurate intelligence relating
to criminal activities, or the trustworthiness of the informant's
motives in volunteering information. We disagree. "[A] warrant
affidavit [need not contain] an averment of previous reliability,
the appropriate inquiry always being whether the informant's
present information is truthful or reliable." United States v.
Cochrane, 896 F.2d 635, 641 (1st Cir.) (citing United States v.
Harris, 403 U.S. 573, 581-82 (1971)) (emphasis added), cert.
denied, 496 U.S. 929 (1990). In the absence of a prior record of
reliability, we have recognized that, where the informant was
"not a professional . . . but a private citizen with no known
criminal record or other criminal contacts, who came forward on
his own . . . [,] the informant's story may be more easily
accepted . . . ." United States v. Campbell, 732 F.2d 1017, 1019
(1st Cir. 1984) (citing United States v. Burke, 517 F.2d 377,
379-81 (1st Cir. 1975)) (emphasis added). Since there is no
evidence that the informant who came to MacMaster either had a
criminal record, or was suspected of current criminal activity, a
neutral judicial officer fairly could find that the informant was
a "private citizen" who volunteered the information to MacMaster.
Furthermore, "an informant's reliability need not
invariably be demonstrated through the detailed narration of the
information previously furnished to law enforcement . . . .
Rather, the affidavit may disclose an adequate basis for evaluat-
ing the informant's veracity through the very specificity and
detail with which it relates the informant's first-hand descrip-
tion of the place to be searched or the items to be seized."
United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) (citing
Caggiano, 899 F.2d at 102-03) (emphasis added); see also Coch-
rane, 896 F.2d at 641 ("[A]n important indicia (sic) of reliabil-
ity is the fact that the informant's knowledge was based upon
personal observation rather than hearsay."). As is apparent from
our recitation of the confidential information provided to
MacMaster, the particularity of the informant's description of
the interior and contents of the residence (e.g., padlocked
doors, multiple firearms), the location, size, and number of
marijuana plants, the marijuana growing apparatus (e.g., basement
cooler, artificial lights), and the illegal marijuana sales
conducted by appellant inside the search premises, provided
considerable intrinsic support for the informant's capacity to
convey reliable intelligence relating to the criminal activity
attested to in the affidavit.2
Finally, appellant argues that MacMaster should have
corroborated the informant's tip before applying for a search
warrant, preferably through surveillance of Scalia's residence.
Corroboration may take various forms, however, and we have never
intimated that surveillance is mandatory. See, e.g., Taylor, 985
F.2d at 6 (finding probable cause where corroboration of infor-
mant's tip did not go beyond check of target's criminal record).
The confidential informant's tip to MacMaster comported with
information received from other sources, including previous BIDE
debriefing interviews with several of Scalia's former associates,
see supra note 1, as well as informal complaints lodged with the
Maine State Police by eight unidentified citizens expressing
concerns about Scalia's drug trafficking activity.
The combined force of the informant's detailed tip,
MacMaster's expert assessment, and the corroborative police
reports provided substantial support for a common-sense determi-
nation by the issuing judge that there existed a fair probability
2MacMaster, a BIDE agent for thirteen years, had participated in more than eighteen hundred drug investigations. He attested both to the informant's demeanor during the interview and to the authenticity of the informant's description of the suspected criminal activity ("impressed by the honesty of this person and his/her ability to describe events which he/she had seen"). See, e.g., Taylor, 985 F.2d
at 6 ("[T]he issuing magistrate properly may credit the experience and pertinent expertise of a law enforcement affiant in evaluating the authenticity of the informant's description of the target's modus operandi.").
that marijuana and related paraphernalia would be found in
appellant's residence.
B. Mandatory Minimum Sentence
A defendant convicted under 21 U.S.C. 841(a)(1) is
subject to a mandatory five-year minimum sentence if the court
finds by a preponderance of the evidence that the defendant
manufactured or possessed "100 or more marijuana plants regard-
less of weight." 21 U.S.C. 841(b)(1)(B)(vii). See United
States v. McMahon, 935 F.2d 397, 400 (1st Cir.), cert. denied,
112 S. Ct. 272 (1991). Were it not for the mandatory statutory
minimum, appellant would have been exposed to a 46-to-57 month
guideline sentencing range (Level 23, Criminal History Category
I), based on the total weight of the marijuana plants (111.8
kilograms) seized at his residence. See U.S.S.G. 2D1.1(c)(9)
(100 KG-400 KG marijuana; level 26); id. 3E1.1(a), (b) (3-level
reduction for acceptance of responsibility); id. 5G1.1(b)
("Where a statutorily required minimum sentence is greater than
the maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence.").
At the time the search warrant was executed, an agent
for the Maine Drug Enforcement Agency, Bruce Bristow, visually
examined the marijuana plants found on the premises. Based on
his education and experience, Bristow concluded that all 112
plants were marijuana. He randomly selected fifteen plants, and
submitted these representative plants (ranging from one and one-
half inches to two feet tall) for chemical analysis.3 The
chemical analysis confirmed that all fifteen samples were mari-
juana plants. Following an evidentiary hearing, the district
court found that all 112 plants were marijuana. Scalia was
sentenced to the mandatory minimum five-year term.
The district court's drug-quantity finding was based on
four factors: (1) Bristow's trained visual identification of all
plants seized at the search scene as marijuana; (2) the fact that
all the plants were seized contemporaneously from the same
location; (3) the positive chemical analysis on all fifteen
sample plants tested, and (4) the absence of evidence that
appellant was growing anything other than marijuana. Appellant
challenges only the first factor relied on by the district court,
by attempting to undercut the reliability of Bristow's visual
identification. Appellant argues that Bristow conceded that at
least two other plant species which grow in Maine look like
marijuana when they are only one and one-half inches tall.
Appellant's claim fails for two reasons.
First, while the record reflects that Bristow testified
that two marijuana look-alikes do grow in Maine, he never stated
3Bristow seized 67 plants from the bedroom, measuring from 1 1/2 inches to 10 inches in height, and 45 plants from the basement cooler, all measuring 24 inches "more or less." Bristow then divided the plants into three groups (i.e., 1 1/2 inch, 10 inch, and 24 inch) and took five samples from each group.
that his training and experience left him incapable of distin-
guishing these look-alikes from marijuana.4 Rather, Bristow
stood by his visual identification. Cf. United States v. Maceo,
873 F.2d 1, 6 (1st Cir.) (extrapolations of drug quantity involve
issues of credibility and weight of evidence reserved for trier
of fact), cert. denied, 493 U.S. 840 (1989); United States v.
Echeverri, 982 F.2d 675, 677 (1st Cir. 1993) (qualification of
"expert" witness reviewed only for manifest abuse of discretion).
Second, the other factors relied on by the district
court strongly support its drug-quantity determination as well.
See United States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991)
(factual findings on drug quantity reviewed for "clear error").
"Although the sentencing court must 'err on the side of cau-
tion[,]'" United States v. Barnett, F.2d , [Nos. 91-
4The relevant exchange was as follows:
Counsel: Based on your training and experience, has it been brought to your attention that there are two other plant-like substances that exhibit similar characteris- tics to the marijuana plant?
Bristow: Yes.
Counsel: How many different ones to your knowledge?
Bristow: That I've run across in the State of Maine, two. There may be more, two that I'm very familiar with.
Counsel: All right. And part of your training is to attempt to differentiate between these similar plants and the ones which are in fact marijuana?
Bristow: Yes, sir.
1890, 91-1891, 92-1778, slip op. at 12 (1st Cir. Mar. 29, 1993)]
(approximating producible quantity of controlled substance based
in part on amount of precursor chemicals seized) (quoting United
States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990)), drug-quanti-
ty estimations need not be statistically or scientifically
precise. See U.S.S.G. 6A1.3 ("In resolving any reasonable
dispute concerning a factor important to the sentencing determi-
nation, the court may consider relevant information without
regard to its admissibility under the rules of evidence applica-
ble at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.")
(emphasis added); United States v. Uwaeme, 975 F.2d 1016, 1018
(4th Cir. 1992) (noting that drug-quantity estimations may be
based on hearsay, nonscientific testimony, defendant's notebook
entries, street values of drugs equivalent to money seized from
defendant, or on extrapolations of potential drug output from
seized components).
More to the present point, courts have endorsed statis-
tically based drug-quantity extrapolations predicated on random
test samples in circumstances where the government was able to
demonstrate an "adequate basis in fact for the extrapolation and
that the quantity was determined in a manner consistent with the
accepted standards of [reasonable] reliability." United States
v. McCutchen, F.2d , (3d Cir. 1993) [No. 92-1536,
1993 U.S. App. LEXIS 7651, at 11 (3d Cir. Apr. 13, 1993)]; United
States v. Pirre, 927 F.2d 694, 697 (2d Cir. 1991) ("It is suffi-
cient for the government to show that its method of estimating
the total [amount of drugs] is grounded in fact and is carried
out in a manner consistent with accepted standards of reliabili-
ty."); see also Barnett, F.2d at [Nos. 91-1890, 91-1891,
92-1778, slip op. at 13] ("We must determine whether the govern-
ment presented sufficient reliable evidence to permit the court
reasonably to conclude that appellants were responsible for a
quantity of drugs at least equal to the quantity threshold for
the assigned base offense level."). For example, sufficient
indicia of reliability may be found where a preponderance of the
evidence demonstrates that (1) a proper "random" selection
procedure was employed; (2) the chemical testing method conformed
with an accepted methodology; (3) the tested and untested samples
were sufficiently similar in physical appearance; and (4) the
tested and untested samples were contemporaneously seized at the
search scene. See McCutchen, F.2d at [No. 92-1536, 1993
U.S. App. LEXIS 7651, at 11-12 (3d Cir. Apr. 13, 1993)]. In sum,
the overall margin of reliability in a drug-quantity approxi-
mation must be adequate to afford reasonable assurance that the
defendant is not subjected to a guideline sentence or a mandated
minimum sentence greater than warranted by the reliable evi-
dence.5 Given the relatively light burden of proof, the reason-
able reliability of the drug-quantity sampling and extrapolation
procedures employed by the government, and the utter absence of
countervailing drug-quantity evidence, we affirm the district
court's findings.
Affirmed.
5A videotape of Bristow's "random" plant selection procedure was received in evidence. Unlike the drug weight extrapolation in
McCutchen, chemical analysis of the fifteen sample plants selected by
Bristow permitted a straightforward extrapolation as to the total number of plants. The plants, all exhibiting the telltale saw-toothed
leaf structure, were seized on the same day from the same residence, giving rise to a "strong inference" that only marijuana plants were seized. McCutchen, F.2d at [No. 92-1536, 1993 U.S. App.
LEXIS 7651, at 13 (Apr. 13, 1993)]. Finally, more than twelve of the seized plants (i.e., over 10% of the total) would have had to test
negative in order to bring the total below the 100-plant cutoff required to trigger the mandatory five-year minimum sentence under 21 U.S.C. 841(b)(1)(B)(vii). Yet all fifteen random samples tested positive for marijuana.