United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3640

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Clifton Z. Freeman, Jr., *

*

Defendant - Appellant. *

___________

Submitted: September 24, 2010

Filed: November 12, 2010

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Before LOKEN, HANSEN, and BENTON, Circuit Judges.

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LOKEN, Circuit Judge.

Clifton Freeman was charged with possession of crack cocaine with intent to

distribute and moved to suppress evidence gathered during a warrant search of his

residence. The district court1

 denied the motion following a suppression hearing

under Franks v. Delaware, 438 U.S. 154 (1978). After Freeman entered a conditional

guilty plea, the district court denied his motion for a “rehearing” of the suppression

issues. Freeman appeals both rulings. We affirm.

1

The HONORABLE JAMES M. MOODY, United States District Judge for the

Eastern District of Arkansas.
I.

Officer Todd Williams of the Pine Bluff, Arkansas Police Department obtained

a warrant to search Freeman’s residence. The warrant affidavit averred that a reliable

confidential informant told Williams that Freeman was hiding crack cocaine under a

camper parked near the residence, which the informant had seen “only moments

before he made contact with [Officer Williams].” Police executing the warrant found

87 grams of crack cocaine and other evidence of drug trafficking. 

When a search warrant is based upon an affidavit setting forth a facially

sufficient showing of probable cause, as in this case, the defendant is nonetheless

entitled to an evidentiary suppression hearing if he makes a “substantial preliminary

showing” that a false statement necessary to the finding of probable cause was

“knowingly and intentionally, or with reckless disregard for the truth,” included in the

warrant affidavit. Franks, 438 U.S. at 155. The evidence will be suppressed if, at the

hearing, the defendant proves the allegation of perjury or reckless disregard, and that

the affidavit’s remaining content was insufficient to establish probable cause. Id. at

156. “[N]egligence or innocent mistake is not enough to establish a Franks violation.

. . . A showing of deliberate or reckless falsehood is not lightly met.” United States

v. Butler, 594 F.3d 955, 961 (8th Cir. 2010) (quotation omitted). 

In this case, when the defense learned that the confidential informant was

Bobby Foster, the son of Freeman’s long-time girlfriend, defense counsel interviewed

Foster with his mother present. Foster denied telling Officer Williams important facts

attributed to Foster in the warrant affidavit -- that Freeman was hiding crack cocaine

under the camper and that Foster had previously provided information as an informant

to Officer Williams. At the end of the interview, counsel prepared and Foster signed

an affidavit including these averments and asserting that police pressured Foster to

help “arrest another individual” after they arrested Foster for possessing cocaine. 

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Freeman then filed a motion to suppress, arguing that Foster’s affidavit showed

there were deliberate falsehoods in Officer Williams’s warrant affidavit essential to

its showing of probable cause, and requesting a Franks hearing. The government

opposed the motion but not the request for an evidentiary hearing. At the start of the

hearing, counsel advised that Foster had recanted the statements made in his affidavit,

as reflected in an F.B.I. Form 302 signed by Foster at the conclusion of an interview

conducted after law enforcement officers learned he was assisting Freeman’s defense. 

Freeman’s counsel was allowed to withdraw because he was now a likely witness, 

and the suppression hearing was rescheduled. 

When the Franks hearing resumed, Freeman (represented by new counsel)

called Foster and Freeman’s former attorney. Foster testified that he in fact provided

Officer Williams the information attributed to Foster in the warrant affidavit; that he

had provided information to law enforcement in the past; that he lied to Freeman’s

former attorney because his mother and Freeman had pressured him to help Freeman’s

case; and that he was not pressured by law enforcement officers to recant when he

signed the F.B.I. Form 302. Freeman’s former attorney denied pressuring Foster to

sign the now-recanted affidavit but had no independent knowledge of the facts

asserted by Foster in the affidavit. When Freeman rested, the government expressed

doubt he had met his burden under Franks but proposed to call its witnesses, who

were present, “to have a complete record.” The district court agreed.

During the government’s case, Officer Williams testified that Foster provided

the information set forth in the warrant affidavit and had previously provided reliable

information; that Williams made an effort to corroborate the information Foster

provided before submitting the affidavit and had no reason to believe that the

information was false; and that Williams had not pressured Foster to recant. Other

officers testified to helping Williams gather and corroborate information in the

warrant affidavit. The officials who interviewed Foster when he recanted, drug task

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force member John McNeil and F.B.I. Special Agent Boyd Boshears, testified that

they made no threats during the interview.

At the conclusion of the hearing, the district court denied Freeman’s motion to

suppress, crediting Officer Williams’s testimony and finding he did not intentionally

or with reckless disregard include false information in the warrant affidavit. On

appeal, Freeman argues the court clearly erred when it did not credit the affidavit

Foster provided to Freeman’s former attorney and find that, because Foster lied when

he recanted at the suppression hearing, Officer Williams intentionally or at least

recklessly included false statements in his warrant affidavit. “We review the district

court’s factual findings on a Franks challenge for clear error” and its legal

determinations de novo. United States v. Mashek, 606 F.3d 922, 929 (8th Cir. 2010). 

A Franks hearing must be denied unless the defendant makes a “strong initial

showing” of deliberate falsehood or reckless disregard of the truth. United States v.

Pennington, 287 F.3d 739, 743 (8th Cir.), cert. denied, 537 U.S. 1022 (2002). In this

case, even if Foster’s affidavit initially made such a showing, the showing collapsed

when Foster recanted at the start of the Franks hearing. Given the Supreme Court’s

caution in Franks that “[t]he requirement of a substantial preliminary showing should

suffice to prevent the misuse of a veracity hearing for purposes of discovery or

obstruction,” 438 U.S. at 170, the district court could have denied the motion to

suppress at this stage of the proceedings. Instead, the court heard the government’s

witnesses to complete the record. The court then put aside the issue of Foster’s

credibility because under Franks the critical issue was whether Officer Williams

reasonably believed the information he set forth in the affidavit. Expressly crediting

Williams’s testimony, the court found he included no intentional or reckless false

statements in the warrant affidavit. Its determination of witness credibility is

“virtually unassailable on appeal.” United States v. Guel-Contreras, 468 F.3d 517,

521 (8th Cir. 2006) (quotation omitted). And here, the credibility finding is amply

supported by the testimony at the suppression hearing, as well as the lack of a

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substantial showing by Freeman to the contrary. The motion to suppress was properly

denied.

II.

Seven months after the court accepted his conditional guilty plea, and one day

prior to sentencing, Freeman filed a Motion for Rehearing or, in the Alternative, for

a Writ of Error Coram Nobis.

2

 In support, he noted that the Supreme Court of

Arkansas had reversed a murder conviction based in part on Special Agent Boshears’s

coercive interrogation techniques, Osburn v. State, 2009 WL 1819337, at pp. 9-15

(Ark. 2009), cert. denied, 130 S. Ct. 1522 (2010), and argued that this “valuable

impeachment information . . . . would likely have changed the outcome of the

[suppression] hearing.” At the start of the sentencing hearing, the district court denied

the motion without a hearing, explaining that the court had read the Osburn decision,

reviewed the evidence presented at the suppression hearing, and concluded that the

finding relating to Special Agent Boshears in the Osburn case would not have

influenced the court’s prior decision to deny Freeman’s motion to suppress. 

On appeal, Freeman argues that the district court abused its discretion in

denying his motion for rehearing because the motion satisfied the criteria for granting

a new trial based upon newly discovered evidence. This argument is without merit. 

A guilty plea waives all suppression issues not expressly reserved by a conditional

plea. See, e.g., United States v. Arrellano, 213 F.3d 427, 430 (8th Cir. 2000). A

conditional guilty plea, such as the plea entered by Freeman, reserves only “the right

to have an appellate court review an adverse determination of a specified pretrial

2

Freeman’s alternative motion for a writ of error coram nobis was without

merit, as that extraordinary remedy is only available after conviction or sentence to

a defendant who is no longer in custody “to correct errors of the most fundamental

character.” United States v. Camacho-Bordes, 94 F.3d 1168, 1173 (8th Cir. 1996)

(quotation omitted).

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motion.” Fed. R. Crim. P. 11(a)(2). Here, Freeman could not move to renew his

suppression motion at or before the trial, the accepted way to urge a trial court to

reconsider its denial of a pretrial motion, because his guilty plea ended the guiltdetermination phase of the proceedings. There was nothing to renew or rehear. 

Rather than a motion for rehearing, which was foreclosed by his guilty plea,

Freeman could have filed a pre-sentence motion to withdraw the plea. Such a motion

may be granted if “the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Had the motion been made in this case,

it would have been denied, not only for the reasons stated by the district court at

sentencing, but also because Freeman’s “guilt and therefore his guilty plea were not

undermined in the slightest” by allegations as to manner in which Special Agent

Boshears interviewed informant Foster long after the search warrant issued and was

executed. United States v. Tucker, 419 F.3d 719, 721 (8th Cir. 2005), cert. denied,

547 U.S. 1020 (2006). “A defendant is not entitled to withdraw his plea merely

because he discovers long after the plea has been accepted that his calculus

misapprehended the quality of the State’s case . . . .” Brady v. United States, 397 U.S.

742, 757 (1970). 

 The judgment of the district court is affirmed.

 ______________________________

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