*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

September 6, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41271

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEROME DEION CUTWRIGHT,

Defendant-Appellant.

________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

Case No. 9:05-CR-19-1

_________________________________________________________________

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

Jerome Cutwright appeals (1) the district court’s denial

of a motion to suppress evidence discovered during a search of his

residence and used subsequently to convict him at trial on two

counts of possession with intent to distribute cocaine and cocaine

base, see 21 U.S.C. § 841(a)(1); and (2) the district court’s

denial of his request that the government produce a confidential
**The relevant portion of the warrant affidavit reads: 

[Confidential Informant] advised affiant that, within the past twenty four [sic] (24)

hours of the presentment of this affidavit to this Court, [Confidential Informant]

had personally been to the residence of JEROME CUTWRIGHT, described herein

as the suspected place and premises located at Rt. 5 Box 6420 in San Augustine

County, Texas, and had personally observed JEROME CUTWRIGHT in

possession of a quantity of cocaine that was possessed for the purpose of sale and

distribution. [Confidential Informant] advised that [Confidential Informant]

observed JEROME CUTWRIGHT in possession of two (2) plastic bags wrapped

with grey tape, weighing approximately two (2) kilos apiece, which contained

cocaine. [Confidential Informant] further stated that while [Confidential Informant]

was at said residence, [Confidential Informant] observed JEROME CUTWRIGHT

conduct a sale and delivery of cocaine.

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informant. Finding no error of fact or law, we AFFIRM.

On March 21, 2005, Deputy Bob Lowe of the San Augustine

County Sheriff’s Department obtained a warrant to search

Cutwright’s residence, located at Route 5, Box 6420, in San

Augustine, Texas. The warrant was based on information

communicated to Deputy Lowe by a confidential informant who had

previously provided one of Lowe’s colleagues with reliable tips

about narcotics trafficking and other criminal offenses on at least

five occasions. The confidential informant told Lowe that he had

seen a large amount of bagged cocaine at Cutwright’s residence and

that Cutwright had made a sale of cocaine in his presence.**

Lowe and six other state officers traveled to the

residence and knocked and announced their presence but received no

response. After gaining entry, they discovered Cutwright in the

rear bedroom and restrained him without incident. A search of the

house revealed: $3,010 in cash from a box in the bedroom; three
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plastic baggies containing 645 grams of powder cocaine, paper

toweling impregnated with white residue, two large wafer-shaped

rounds of cocaine base, and $4,725 in cash from the kitchen; 2.31

pounds of marijuana apportioned between three plastic bags hidden

in the clothes dryer; digital scales and an additional $1,245 in

cash.

Before trial, Cutwright moved to suppress evidence seized

during execution of the search warrant. The district court denied

the motion. Cutwright also moved that the government be required

to disclose the identity of the confidential informant. The court

denied the motion as moot because the government had already

provided Cutwright with the informant’s name and address. The

process server hired by Cutwright was unable to locate the

informant. 

Cutwright was tried before a jury on April 3, 2006, and

found guilty on both counts of possession with intent to distribute

cocaine and cocaine base. The district court sentenced him to

eighty months’ imprisonment followed by four years’ supervised

release on both counts, to be served concurrently. He appeals the

district court’s denial of both motions.

1. Denial of the Suppression Motion

We review factual findings supporting the denial of a

suppression motion for clear error and legal conclusions de novo.

United States v. Williams, 365 F.3d 399, 403 (5th Cir. 2004)
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(citing Ornelas v. United States, 517 U.S. 690, 694-97, 116 S. Ct.

1657, 1660-63 (1996)). We view the evidence in the light most

favorable to the prevailing party, here, the government. United

States v. Estrada, 459 F.3d 627, 630 (5th Cir. 2006).

When a search warrant is at issue, we use a two-step test

in reviewing the district court’s denial of a suppression motion.

First, we determine whether the good-faith exception to the

exclusionary rule applies. United States v. Mays, 466 F.3d 335,

342 (5th Cir. 2006) (citing United States v. Leon, 468 U.S. 897,

922-23, 104 S. Ct. 3405, 3420 (1984)). If the exception applies,

we inquire no further whether the warrant was supported by probable

cause. Id. Only if Leon’s exception is inapplicable do we proceed

to the second step and ask whether the court had a substantial

basis for the probable-cause determination. United States v.

Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003). Because the instant

warrant is facially valid, that second step is unnecessary.

Cutwright contends that the affidavit used to support the

search warrant was “bare bones” and that accordingly no reasonable

officer could have relied on it in good faith. An affidavit is

bare bones “if it is so deficient in demonstrating probable cause

that it renders an officer’s belief in its existence completely

unreasonable.” United States v. Cisneros, 112 F.3d 1272, 1278 (5th

Cir. 1997). Typically, bare bones affidavits “contain wholly

conclusory statements, which lack the facts and circumstances from

which a magistrate can independently determine probable cause.”
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United States v. Pope, 467 F.3d 912, 920 (5th Cir. 2006) (quoting

United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992);

see also United States v. Barrington 806 F.2d 529, 531 (5th Cir.

1986) (affidavit was devoid of specific details and stated only

that officer “received information from a confidential informant”

known to have provided accurate information in the past).

Deputy Lowe’s affidavit is not bare bones. In it, Deputy

Lowe swore that the informant related particular details of the

contraband at the residence and that the informant had previously

identified cocaine and provided accurate information about the

location of narcotics on at least five separate occasions. Lowe

also knew from personal experience as a San Augustine lawenforcement officer that Cutwright lived at the address provided.

This court has held on numerous occasions that warrant affidavits

containing sworn testimony substantially similar to Deputy Lowe’s

are not bare bones. See Satterwhite, 980 F.2d at 317-18; United

States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992); Christian

v. McKaskle, 731 F.2d 1196, 1198 (5th Cir. 1984). The warrant

facially provided a good-faith basis upon which the officers could

rely. Denial of the suppression motion was not error. 

2. Denial of Motion to Produce Confidential Informant at Trial

Cutwright next argues that the court erred in denying his

motion that the government produce the confidential informant as a

witness at trial. We review denial of the motion for an abuse of
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discretion. United States v. Thomas, 348 F.3d 78, 85 (5th Cir.

2003). No error occurred here.

The presence of the confidential informant at trial was

immaterial because the only pertinent information Cutwright alleges

the informant had was already contained in the warrant affidavit,

which is facially valid. Even if the informant had knowledge of

facts beyond those contained in the warrant affidavit, the

government provided Cutwright with the informant’s name and last

known address. Cutwright then hired a process server who

interviewed several members of the informant’s immediate family but

was unsuccessful in locating the informant. “The Government is not

required to guarantee an informant’s presence at trial.” United

States v. Gonzalez, 582 F.2d 991, 993 (5th Cir. 1978). Since

Cutwright was aware of the informant’s identity, the government

need only have made a reasonable effort to produce the informant.

See Fitzpatrick v. Procunier, 750 F.2d 473, 476 (5th Cir. 1985).

The government’s attempts to contact and locate the informant prior

to trial satisfy this modest burden.

Finding no error in either of the district court’s

rulings, we AFFIRM the conviction.