UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Richard D. Bennett, Joseph W. Hovermill, Maura L. DeMouy,

MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellant. Lynne A. Battaglia, United States Attorney, Susan M. Ringler,

Assistant United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

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 abundant 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, documents, 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 testifying. 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 property/document to that location . . . .

Brown argued at the suppression hearing that Agent Parker erroneously 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 issuance of a warrant, albeit for different premises.

A search warrant is sufficient if, from the totality of the circumstances, 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 warrant 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 providing 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, documents, 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

_________________________________________________________________

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 Government 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 investigation 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 Government, 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 evidence of either misconduct or overreaching in this case. Contrary to

Brown's contentions on appeal, this is not a case where the Government 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. Consequently, 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 compel the Government to grant immunity to Mudd.

_________________________________________________________________

district court found as a matter of fact that Agent Parker had not misrepresented the circumstances during her oral testimony and that Judge Kenkel 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