The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4511
ROBERT CLAY BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-96-482-DKC)
Submitted: July 31, 1998
Decided: September 18, 1998
Before MURNAGHAN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Richard D. Bennett, Joseph W. Hovermill, Maura L. DeMouy,
MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appel-
lant. Lynne A. Battaglia, United States Attorney, Susan M. Ringler,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Robert Clay Brown appeals his convictions for five counts of mail
fraud. See 18 U.S.C.A. § 1341 (West Supp. 1998). Brown claims on
appeal that the district court erred in denying his motion to suppress
and in not granting immunity to a witness that he called on his behalf.
Finding no merit to Brown's contentions, we affirm.
Brown asserts first that a search warrant authorizing a search of his
residence was not supported by probable cause to believe that the
items to be seized were located in his home. During the Government's
investigation of a fraudulent scheme to defraud homeowners through
bogus offers of home equity credit, Special Agent Roberta Parker
applied for and obtained search warrants for Brown's two business
addresses and the home address of Michael Clott, one of Brown's
associates. Agent Parker's twenty-three page affidavit set forth abun-
dant probable cause to support the issuance of the search warrants.
On July 19, 1995, three teams of agents executed the warrants.
Agent Parker was assigned to one of the business locations. Upon her
arrival, she discovered that the offices used by Brown and Clott were
virtually empty. It appeared that Brown's files and records had been
removed, and in particular, a computer brought to that location by
Brown was missing.
Agent Parker spoke with the office manager of a law firm located
on the same floor and the receptionist for the entire suite. Both
reported that Brown had been in the office between July 17 and 18
and that, by July 19, the computer, documents, and files were gone.
Brown told the receptionist that the business was shut down and that,
if anyone called, they were to be directed to Brown's attorney. Agent
Parker was advised by the seizing agents at Clott's residence and the
other business address that only a small quantity of business records
had been found.
2
After learning this information, Agent Parker contacted Magistrate
Judge Kenkel to request a telephonic warrant authorizing a search of
Brown's residence. In deciding whether to issue the warrant, Judge
Kenkel reviewed the affidavit that Agent Parker had sworn out the
previous day. Judge Kenkel then placed Agent Parker under oath, and
while she testified, he took notes summarizing her testimony. There
was no verbatim recording or transcript made of the conversation.
Judge Kenkel issued the warrant, and the missing documents and
computer were found in Brown's residence.
At the suppression hearing, Agent Parker testified that she told
Judge Kenkel that Brown and Clott's offices were virtually empty.
She advised that she had interviewed two persons who worked on the
same floor, who stated that Brown informed them that the company
was defunct. These persons also stated that, shortly after Brown had
been present in the offices, they noticed that the computer, docu-
ments, files, and other papers were missing. Agent Parker also stated
that she told Judge Kenkel that Brown had no other business address
and that she inferred that he had taken his records to his home.
Judge Kenkel also testified at the suppression hearing. He stated
that he had no independent recollection of his conversation with
Agent Parker, and he relied almost exclusively on his notes in testify-
ing. Judge Kenkel's contemporaneous summary of Agent Parker's
testimony read as follows:
July 19, 1995, 3:00 p.m., by S/A Parker adopts above and
in addition, Robert Brown removed all records from office
space at 1150 Conn. Ave, N.W., #900, Washington, D.C.,
Robert Brown told Receptionist company dissolved Robert
Brown lives at Bowie, Md address and took proper-
ty/document to that location . . . .
Brown argued at the suppression hearing that Agent Parker errone-
ously informed Judge Kenkel that she had direct information that
Brown had removed the documents and computer to his home.
According to Brown, absent that direct information, Judge Kenkel
would not have worded his summary as he did and would not have
granted the search warrant. Agent Parker denied making this repre-
3
sentation and maintained that she had told Judge Kenkel that this was
her inference from the circumstances.
The district court found Agent Parker to be a credible witness.1 The
court also concluded that Judge Kenkel's notes did not reflect exactly
what Agent Parker testified to, but rather represented a summary. The
court further relied on Judge Kenkel's testimony that he engaged
Agent Parker in conversation and asked her questions and that he
relied in part on the fact that two other magistrate judges had found
Agent Parker's detailed affidavit constituted probable cause for issu-
ance of a warrant, albeit for different premises.
A search warrant is sufficient if, from the totality of the circum-
stances, there is probable cause to believe that evidence of a crime
will be on the premises to be searched. See Illinois v. Gates, 462 U.S.
213, 230 (1983). An affidavit or testimony in support of a search war-
rant must show a fair probability that evidence of a crime will be
found in the place to be searched. See Massachusetts v. Upton, 466
U.S. 727, 733 (1984). The affidavit need not contain information pro-
viding certainty that the objects sought will be found as a result of the
search, and it is not necessary that someone personally observed the
evidence at the defendant's residence. See Anthony v. United States,
667 F.2d 870, 874 (10th Cir. 1981).
In this case, we find that there was probable cause to support the
conclusion that Brown's residence would contain the files, docu-
ments, and computer sought. These items belonged to Brown, he was
seen in his offices around the same time these items were removed,
he had no other business address, and the items were not at the home
of his business associate. Therefore, we find an adequate nexus
between the premises and the items to be seized. 2
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1 This issue was reopened to permit further questioning of Agent Parker
regarding a suspension from her job, which resulted from her misuse of
a government vehicle. The district court considered the new evidence
and reaffirmed its finding that Agent Parker was a credible witness. On
appeal, we do not review issues of credibility. See United States v. Veras,
51 F.3d 1365, 1370 (7th Cir. 1995).
2 Brown argues that Judge Kenkel would not have issued the warrant
unless Agent Parker had misrepresented the facts to him. However, the
4
Brown next contends that his ability to present an effective defense
was compromised by the district court's refusal to compel the Gov-
ernment to grant immunity to a defense witness, John Mudd. Mudd
indicated that he would assert his Fifth Amendment privilege against
self-incrimination if called to testify. The Government declined to
extend immunity to Mudd, even though there was no current investi-
gation or prosecution of Mudd. Brown proffered that Mudd would
testify that Clott misrepresented business dealings to Brown and that
Brown exhibited a desire to make sure that the mortgages were paid
and that things were corrected. Brown now urges this court to hold
that the district court should have compelled the Government to
extend immunity to Mudd.
Without misconduct or overreaching on the part of the Govern-
ment, the district court cannot compel the prosecution to provide
defense witnesses with immunity for their testimony. See United
States v. Abbas, 74 F.3d 506, 512 (4th Cir. 1996). There is no evi-
dence of either misconduct or overreaching in this case. Contrary to
Brown's contentions on appeal, this is not a case where the Govern-
ment manipulated its immunity powers to gain an unfair advantage.
The absence of the present decision to prosecute is not evidence of
an intention to distort the fact-finding process. See United States v.
Turkish, 623 F.2d 769, 777 (2d Cir. 1980). Furthermore, Brown's
proffer of Mudd's testimony was vague and cumulative. Conse-
quently, there is no reason to conclude that Brown produced even a
minimal showing of prosecutorial overreaching, much less that
Brown bore his "heavy burden" to make out the required "decisive"
showing. See United States v. Mitchell, 886 F.2d 667, 669 (4th Cir.
1989). We find that the district court did not err in declining to com-
pel the Government to grant immunity to Mudd.
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district court found as a matter of fact that Agent Parker had not misrep-
resented the circumstances during her oral testimony and that Judge Ken-
kel was not operating under any misconceptions as to what Agent
Parker's testimony was. Based on our review of the record, we hold that
this finding by the district court was not clearly erroneous. See United
States v. Ramos, 12 F.3d 1019, 1022 (11th Cir. 1994) (standard of
review). Because we find that Judge Kenkel issued a valid warrant, we
need not reach the issue of whether Agent Parker relied in good faith on
a defective search warrant.
5
We, therefore, affirm. 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
6