confidential informant’s statements to detective were not testimonial because they explained the context and motivation for the detective’s actions regarding a search warrant
How later courts described this case
- confidential informant’s statements to detective were not testimonial because they explained the context and motivation for the detective’s actions regarding a search warrant
- "‘The Brady right ... exists to ... minimize the chance that an innocent person would be found guilty.’ ”
- “Here, because no 15 trial occurred, Brown may not assert a constitutional violation.”
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4654
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMARCUS MANDELL BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:12-cr-00057-SGW-1)
Submitted: May 30, 2014 Decided: June 13, 2014
Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Rebecca S. Colaw, REBECCA S. COLAW, P.C., Suffolk, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jennifer
S. DeGraw, Special Assistant United States Attorney, Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demarcus Mandell Brown pleaded guilty pursuant to a
written plea agreement to distributing cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C) (2012) (Count Four), using and
carrying a firearm during and in relation to, and in furtherance
of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2012) (Count Five), and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2012) (Count Six).
On appeal, Brown alleges that: (1) the district court improperly
refused to suppress evidence seized from his residence and
denied his request for a hearing pursuant to Franks v. Delaware,
438 U.S. 154 (1978); (2) the district court erred in denying his
motion to withdraw his guilty plea; (3) counsel was ineffective;
(4) the district court erred in failing to find a violation
under Brady v. Maryland, 373 U.S. 83 (1963); and (5) testimony
during the suppression hearing violated his Sixth Amendment
rights. We affirm.
Following multiple controlled purchases of cocaine
from Brown, conducted through a confidential informant, Roanoke
City Police Detective Kelly Jennings applied for a search
warrant of Brown’s residence, supporting it with his affidavit.
The affidavit described the controlled transactions and averred
that, prior to a certain transaction, detectives saw Brown
arrive at his residence, and then quickly enter and exit the
2
building. The affidavit stated that Jennings then viewed Brown
arrive at the agreed location for the transaction and conduct an
exchange of cocaine with the confidential informant. Based on
Jennings’ application, a search warrant issued for Brown’s
residence.
Following a subsequent controlled transaction,
officers arrested Brown and conducted a search of his residence,
seizing drugs, drug paraphernalia, and a loaded firearm. Brown
moved to suppress the evidence and for a Franks hearing. Franks
v. Delaware, 438 U.S. 154 (1978). The district court conducted
two separate motions hearings and heard testimony from Jennings,
one other police detective, and Brown. After hearing the
testimony and the parties’ arguments, the court found that Brown
failed to make the necessary showing and denied his suppression
motion.
During pretrial preparation, the government learned of
a police incident report (“incident report”) that stated the
confidential informant in Brown’s case lied to Jennings in a
controlled drug transaction in an unrelated investigation. 1 The
following day, the government sent defense counsel a complete
1
The incident report and the events contained therein
postdated Jennings’ application for the search warrant of
Brown’s residence.
3
copy of the incident report. Brown entered his guilty plea
several days later.
Approximately four months later, Brown filed a pro se
motion to withdraw his guilty plea or for a new trial. Brown
asserted that he learned of the incident report only after his
guilty plea, and alleged error by both the government and his
counsel. At the scheduled sentencing hearing, the district
court denied Brown’s withdrawal motion, and sentenced Brown to a
total of 285 months’ imprisonment. Brown timely appeals.
(1) Motion to Suppress and for a Franks Hearing. Brown first
contends that the district court erred in denying his motion to
suppress and for a Franks hearing, contending that Jennings made
deliberately false statements in his affidavit supporting the
warrant application and that these false statements were
material to the probable cause determination. This court
reviews the legal determinations underlying a district court’s
denial of a Franks hearing de novo, and its factual findings for
clear error. United States v. Allen, 631 F.3d 164, 171 (4th
Cir. 2011). A defendant challenging the validity of a warrant
is entitled to a hearing if he makes a preliminary showing that:
“(1) the warrant affidavit contained a deliberate falsehood or
statement made with reckless disregard for the truth and (2)
without the allegedly false statement, the warrant affidavit is
not sufficient to support a finding of probable cause.” United
4
States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (internal
quotation marks omitted). A defendant bears a heavy burden to
establish the need for a Franks hearing, United States v.
Jeffus, 22 F.3d 554, 558 (4th Cir. 1994), and “allegations of
negligence or innocent mistake are insufficient.” United States
v. Tate, 524 F.3d 449, 454 (4th Cir. 2008) (internal quotation
marks omitted).
Brown primarily argues that Jennings falsely stated
that detectives observed Brown arrive at his residence, and then
quickly enter and exit this building, rather than merely seeing
Brown in the area outside his or another building. We agree
with the district court that Brown has not established by a
preponderance of the evidence that the search warrant affidavit
contained statements that were intentionally or recklessly
false, rather than merely negligent. Furthermore, the district
court found credible the detectives’ testimony regarding their
observations and the search warrant application, and we defer to
the district court’s credibility determination. See United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008).
Therefore, we conclude that the district court did not err in
denying Brown’s suppression motion.
(2) Motion to Withdraw Plea. Brown argues that the district
court improperly denied the motion to withdraw his guilty plea,
asserting that had he known about the incident report, he would
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not have pleaded guilty. We review for abuse of discretion a
district court’s denial of a motion to withdraw a guilty plea.
United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).
“A defendant has no absolute right to withdraw a guilty plea[.]”
Id. at 383-84 (internal quotation marks omitted). Instead, the
defendant bears the burden of “show[ing] a fair and just reason”
for withdrawal. Fed. R. Crim. P. 11(d)(2)(B); Nicholson, 676
F.3d at 383. We conclude that the district court properly
applied the factors set forth in United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991), and did not abuse its discretion
in denying Brown’s motion.
(3) Ineffective Assistance of Counsel. Brown’s ineffective
assistance claim—that counsel was ineffective in failing to show
him the incident report until after the guilty plea hearing—is
not cognizable on direct appeal. Unless an attorney’s
ineffectiveness is conclusively apparent on the face of the
record, ineffective assistance claims are not generally
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir. 2008). Instead, such claims should be raised
in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in
order to permit sufficient development of the record. United
States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).
Because there is no conclusive evidence of ineffective
6
assistance of counsel on the face of the record, we find that
this claim should be raised, if at all, in a § 2255 motion.
(4) Brady Violation. In order to establish a Brady violation,
a defendant must show that the government failed to disclose
“evidence favorable to an accused . . . where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady, 373 U.S. at
87. Evidence is favorable to the accused not only if it would
exculpate the accused, but also if it could be used to impeach a
government witness. United States v. Ellis, 121 F.3d 908, 914
(4th Cir. 1997). “The Brady right, however, is a trial right .
. ., and exists to preserve the fairness of a trial verdict and
to minimize the chance that an innocent person would be found
guilty.” United States v. Moussaoui, 591 F.3d 263, 285 (4th
Cir. 2010). “[T]he Constitution does not require the Government
to disclose material impeachment evidence prior to entering a
plea agreement with a criminal defendant.” United States v.
Ruiz, 536 U.S. 622, 628, 633 (2002). Here, because no trial
occurred, Brown may not assert a constitutional violation. 2
Moussaoui, 591 F.3d at 285.
2
Moreover, as the district court concluded, the government
turned over the incident report to defense counsel prior to
Brown’s guilty plea hearing.
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(5) Sixth Amendment. Finally, Brown argues that Jennings’
testimony at the suppression hearing regarding statements made
by the confidential informant violated his Sixth Amendment
rights. “We review alleged Confrontation Clause violations
under the de novo standard of review.” United States v. Lighty,
616 F.3d 321, 376 (4th Cir. 2010). The Confrontation Clause
guarantees a criminal defendant the right “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. In Crawford
v. Washington, the Supreme Court held that the Confrontation
Clause bars “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to
testify, and the defendant had a prior opportunity for cross-
examination.” 541 U.S. 36, 53–54 (2004).
But the admission of non-hearsay does not implicate a
defendant’s confrontation rights. See id. at 60 n.9 (“The
Clause . . . does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter
asserted.”); Fed. R. Evid. 801(c) (defining an out-of-court
statement as hearsay if it is “offered in evidence to prove the
truth of the matter asserted”). Out-of-court statements
explaining or providing context for the actions of law
enforcement officers are routinely admitted as non-hearsay. See
United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985)
(holding that agent’s testimony concerning information received
8
from another agent “was offered not for its truth but only to
explain why the officers and agents made the preparations that
they did in anticipation of the appellant’s arrest.”). Here,
the confidential informant’s statements to Jennings were not
offered for their truth, but for the limited, permissible
purpose of explaining Jennings’ ensuing actions regarding the
search warrant. Because the statements explained context and
motivation, we conclude that the testimony did not implicate the
Confrontation Clause.
Accordingly, we affirm the judgment below. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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