RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0444p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DANIEL LEE STUART,

 Defendant-Appellant.

X

-

-

-

-

>

,

-

N

No. 06-2279

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-80439—George C. Steeh, District Judge.

Argued: October 23, 2007

Decided and Filed: November 7, 2007 

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Liisa R. Speaker, SPEAKER LAW FIRM, PLLC, Lansing, Michigan, for Appellant.

Kevin M. Mulcahy, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

ON BRIEF: Liisa R. Speaker, SPEAKER LAW FIRM, PLLC, Lansing, Michigan, Ina R. O’Briant,

East Lansing, Michigan, for Appellant. Kevin Mulcahy, ASSISTANT UNITED STATES

ATTORNEY, Detroit, Michigan, for Appellee.

_________________

OPINION _________________

SUTTON, Circuit Judge. A jury convicted Daniel Lee Stuart of violating several drugtrafficking and firearm-possession laws. On appeal, Stuart argues that his rights to effective

assistance of counsel, a trial by jury, a Franks hearing and due process were violated. Because we

decline to review Stuart’s ineffective assistance claim on direct appeal and because his other

arguments are unconvincing, we affirm.

I.

On March 25, 2003, a Michigan police officer stopped Richard Hale for speeding, discovered

a gallon-sized bag of marijuana in his car and arrested him. Soon after the arrest, Hale spoke with

Officer Lou Costley, a member of the Jackson Narcotics Enforcement Team. As a three-time prior

offender, Hale knew that another conviction could mandate a life sentence, and as a result he

cooperated with the police in order to “save [his] own freedom.” JA 277. Hale told Costley that he

1
No. 06-2279 United States v. Stuart Page 2

had purchased the seized marijuana from Daniel Stuart, that he had purchased marijuana from Stuart

on a regular basis and that he had seen an additional ten pounds of marijuana in Stuart’s residence.

 Costley sought a warrant to search Stuart’s residence. In the affidavit accompanying the

warrant application, he described the facts surrounding the traffic stop and Hale’s incriminating

statements about Stuart. Costley added that Stuart previously had been investigated for marijuana

possession. A judge approved the warrant that same day—March 25th. When the narcotics team

searched Stuart’s house, they seized roughly four pounds of marijuana, two digital scales, body

armor and a small arsenal of firearms that included a revolving cylinder shotgun (a “street

sweeper”), two assault rifles and five other shotguns or rifles. 

A federal indictment charged Stuart with (1) possession of marijuana with intent to

distribute, see 21 U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug-trafficking

crime, see 18 U.S.C. § 924(c)(1)(A); (3) maintenance of drug-involved premises, see 21 U.S.C.

§ 856(a)(1); (4) possession of an unregistered firearm, see 26 U.S.C. § 5861(d); and (5) possession

of a firearm by an illegal drug user, see 18 U.S.C. § 922(g)(3).

Stuart sought to suppress the evidence against him based on an alleged discrepancy between

the date of the search and the date of the warrant. Relying on a difference between the date of the

warrant (March 25, 2003, JA 57) and the date of the incident report (which bore a “Date & Time”

of March 23, 2003, JA 60), Stuart argued that the warrant “was issued [two] days after the actual

search took place.” JA 57. Claiming that a “major conspiracy” was afoot, JA 170, Stuart accused

government officials of forging documents in order to cover up the fact that the search occurred

before the officers had a warrant. As evidence, Stuart offered to submit an affidavit of Mary Jo

Marr—his girlfriend—stating that the search occurred on Sunday, March 23. The police, he added,

orchestrated this conspiracy to get Stuart “off the street” because “he had a lot of incriminating

evidence about” various officers’ “drug trafficking in Jackson.” JA 191. In response, the

government explained that the discrepancy over the date of the search stemmed from a computer

mistake and provided several documents—five officer activity logs, a towing report, a condemnation

document, dispatch logs, canine search documentation, fingerprint records and a booking

report—showing that the search occurred on Tuesday, March 25.

After listening to all of this, the court determined that it did not need “to hear testimony in

order to resolve the motion based on the credibility of the competing versions,” because “the theory

of the movant in this case is so bizarre, it has to be beyond belief.” JA 188. The court also told the

defense that “unless you [are] able to produce something more than that close friend of the

defendant’s who says that she remembers that it was the 23rd that he was arrested . . . I don’t believe

that you have created a sufficient question of fact concerning that issue . . . . If in the meantime you

developed some more compelling evidence . . . then I will certainly entertain that.” JA 189–90. 

Nearly one month later, the court granted Charles Fleck’s motion to withdraw as defense

counsel and permitted Stuart, with new counsel, to file an additional motion for a hearing under

Franks v. Delaware, 438 U.S. 154 (1978), to challenge the truthfulness of Costley’s statements in

the underlying search-warrant affidavit. Stuart attached an affidavit of Terrance Wheeler, who said

that Costley previously had offered him “immediate release from detainment with no further

actions . . . if [he] would say that [he] had purchased marijuana from Daniel Stuart.” JA 98. The

court denied the motion, finding probable cause and noting that Wheeler’s affidavit did nothing to

establish that Costley asked Wheeler “falsely or recklessly [to] implicate” Stuart. JA 32.

At a separate pretrial hearing, the government told the court that Stuart had listed two

witnesses, Anthony Marr and Mary Jo Marr, who might testify about the date of the search in a

manner that “contradict[s] what the police officers testified to . . . and what other witnesses testify

to.” JA 211. The government told the court that the witnesses “should be advised they need to seek
No. 06-2279 United States v. Stuart Page 3

counsel because they may be setting themselves up for jeopardy.” Id. The court declined to give

such a caution “given the chilling effect that such a warning might have for them to testify.” JA 212.

At the end of the prosecution’s case, Stuart proposed this jury instruction: “In order to return

a guilty verdict, all twelve of you must agree that the defendant committed the crime on the same

date, either March 23, 2003 or March 25, 2003.” JA 157. The court refused to submit the

instruction because “the validity of the warrant and the search . . . [is a] question for the Court to

decide.” JA 350.

II.

Stuart raises four arguments on appeal: (1) his original counsel was ineffective in failing to

investigate his theory about the date of the search; (2) the court violated his Fifth and Sixth

Amendment rights when it refused to submit the dispute over the date of the search to the jury;

(3) the court improperly denied him a Franks hearing; and (4) the court violated his due process

right to present his theory of the case when the prosecution intimidated his witnesses with perjury

threats.

A.

“As a general rule, this Court will not review claims of ineffective assistance of counsel for

the first time on direct appeal [unless] the record is adequately developed . . . .” United States v.

Hall, 200 F.3d 962, 965 (6th Cir. 2000). Stuart offers no good reason for departing from this general

rule here, and accordingly Stuart must pursue these claims, if he pursues them at all, through a

motion under 28 U.S.C. § 2255. 

B.

Stuart next argues that the court violated his rights under the Fifth and Sixth Amendments

when it refused to submit the dispute over the date of the search to a jury. The court should have

adopted his proposed jury instruction, he says, because the timing of the search was a factual

question and because “questions of fact[] are to be determined by the jury and matters of law are

properly determined by the court.” Br. at 10. 

Even if we accept Stuart’s argument that he presented enough evidence to create a legitimate

factual dispute over the date of the search, that does not make the question one for the jury. The

application of the exclusionary rule generally presents “question[s] of fact and law for the court and

not for the jury.” Steele v. United States, 267 U.S. 505, 511 (1925) (holding that a probable-cause

determination need not be submitted to a jury). As with most evidentiary rulings, see Fed. R. Evid.

104(a); United States v. Nickerson, 606 F.2d 156, 158 (6th Cir. 1979), courts rather than juries must

ultimately decide whether a Fourth Amendment claim requires the suppression of evidence, see

Steele, 267 U.S. at 511; United States v. Lang, 8 F.3d 268, 271 (5th Cir. 1993) (reversing based upon

the court’s failure to determine conclusively whether cocaine was in plain view). 

Stuart responds that he wanted the jury to determine a factual question at the “heart

of . . . [his] constitutional rights,” not the admissibility of evidence. Reply Br. at 1. But the date of

the search was relevant only to the propriety of applying the exclusionary rule, not for any other

reason. Once the court upheld the validity of the search, all that was left for the jury to decide was

whether the government proved the elements of the charges beyond a reasonable doubt. None of

the charged crimes required the jury to agree upon the date of the search or even the date that the

crime occurred. The jurors needed to agree only that, as charged in the indictment, “[o]n or about

March 25, 2003,” Stuart possessed the marijuana with the requisite distributive intent, possessed the

relevant guns and maintained a drug-involved premises. JA 17–19 (emphasis added).
No. 06-2279 United States v. Stuart Page 4

Stuart says that Haynes v. Washington, 373 U.S. 503 (1963), is to the contrary, and that it

requires all factual questions bearing on constitutional issues to go to the jury. That is not true. A

jury determination of a factual issue “may be entitled to some weight” in some circumstances,

Haynes acknowledged, id. at 515, but it never said that a defendant’s right to a jury trial requires all

factual questions bearing on the validity of a search to go to a jury. At stake in Haynes was not the

validity of a search but the validity of admitting an involuntary confession at trial. Id. at 514–15.

After the Court determined that “the bounds of due process ha[d] been exceeded” by the admission

of the involuntary confession, it rejected the State’s argument that this conclusion was “foreclosed”

because the “jury may have reached a different result on this issue,” id. at 515, when it was asked

to decide the voluntariness of the confession under a later-abandoned state-law procedure that

treated the issue as one of fact, id. at 506–07 & n.5. In reaching this conclusion, Haynes observed

that the courts “cannot be precluded by the verdict of a jury from determining” the ultimate

constitutional question. Id. at 515–16. Haynes, in short, is a case that identified due process

problems with submitting the constitutionality of a confession to a jury, not with submitting it to a

judge. 

Any doubt about the meaning of Haynes was put to rest one year later by Jackson v. Denno, 378 U.S. 368 (1964), which invalidated a New York procedure that sent the voluntariness of a

confession to the jury unless “in no circumstances could the confession be deemed voluntary.” Id.

at 377. The Court rejected this procedure because of the “danger that matters pertaining to the

defendant’s guilt will infect the jury’s findings of fact bearing on voluntariness.” Id. at 383. Far

from requiring juries to decide such questions, the Court held that trial judges must make a “clearcut determination of the voluntariness of the confession, including the resolution of disputed facts

upon which the voluntariness issue may depend.” Id. at 391. Whether Haynes and Jackson still

allow a jury to consider factual issues bearing on constitutional questions after the judge has ruled

on the question is a matter we need not decide; for present purposes, it suffices to say that the two

cases do not require courts to allow juries to second guess those decisions or decide them in the first

instance. 

It is worth emphasizing the reach of Stuart’s rule: He is not saying that courts may present

juries with factual questions bearing on the constitutional admissibility of evidence obtained during

a criminal investigation; he is saying that they must do so. Not only does that position lack a single

precedent to support it, but it also would transform criminal trials. Courts hoping to follow this rule

would face a series of awkward choices in deciding how to comply with it. They could hold a jury

trial before the (real) jury trial to determine what evidence would be admissible against the

defendant. Or they could submit the constitutional evidentiary issues to the same jury that decides

guilt or innocence. The former response would compel two criminal trials in the place of one and

frequently would require witnesses to testify on two different occasions. And the latter would

preclude the parties (including the defendant) from knowing what evidence would be admissible

until after each party had closed its evidence and the case had gone to the jury—a cure that surely

makes the disease worth living with.

It gets worse. Any hope of complying with Stuart’s jury-instruction method in a single

proceeding—the remedy Stuart seems to prefer—would require the jury to determine the evidence

it was allowed to consider after it heard the evidence it might or might not be allowed to consider.

In any trial in which the jury found the defendant guilty after resolving the constitutional fact dispute

in the defendant’s favor, the court would face serious cause for a mistrial. Cf. Haynes, 373 U.S. at

518–19 (remanding the case “for a jury to decide on a new trial free of constitutional infirmity”);

Jackson, 378 U.S. at 388 (noting that, once admitted, evidence becomes “solidly implanted in the

jury’s mind”). In the final analysis, Stuart’s rule has no more precedential support than it does

common-sense support, and accordingly we reject the argument. 
No. 06-2279 United States v. Stuart Page 5

C.

In contending that the district court should have granted a Franks hearing, Stuart fails to

come to grips with the fact that he did not make a threshold showing that the warrant affidavit

contained deliberately or recklessly false information. Franks no doubt gives defendants the right

to challenge the propriety of a previously issued warrant. But “[i]n order to obtain a hearing, the

defendant must make a substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included in the affidavit.” United States

v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002). Warrant affidavits carry with them “a presumption

of validity,” and “the challenger’s attack must be more than conclusory” and must allege “deliberate

falsity or reckless disregard [on the part] of the affiant, not of any nongovernmental informant.”

Franks, 438 U.S. at 171 (emphasis added). 

In addressing this issue, we need not take sides on the division in the courts of appeals over

whether a district court’s Franks ruling receives clear error or de novo review. See Stewart, 306

F.3d at 304. In Stewart, we identified the conflict in the courts but determined that “the more

exacting [de novo] standard of review is satisfied . . . and it is unnecessary for us to further discuss

the issue.” Id. (internal quotation marks omitted and alterations in original). We take the same path

here. Stuart has made no showing that any of the information in the affidavit was deliberately false

or submitted with reckless disregard for its truth, and as a result his claim cannot satisfy either

standard.

In his warrant affidavit, Costley described his expertise in narcotics trafficking, his

knowledge of previous narcotics investigations involving Stuart, the details behind Hale’s arrest and

Hale’s statements about Stuart’s drug dealing. Stuart has done nothing to show that Costley—the

affiant—made any deliberately false or reckless claims in the affidavit. Each of Hale’s allegations

was set forth with the qualifier, “Your Affiant was informed by Hale . . . .” JA 86–89. Stuart points

only to evidence that one of Hale’s statements to the police may have been misleading, and he has

provided no evidence that the statements were not true, let alone that Hale never made them to

Costley. Although Hale equivocated at trial regarding whether he actually saw ten pounds of

marijuana, he confirmed that he did indeed tell the police he saw “seven to ten” additional pounds.

JA 282. Stuart thus has not established a cognizable claim of falsity “of the affiant,” as Franks

requires. 438 U.S. at 171.

Stuart alternatively argues that Costley recklessly credited Hale’s statements because Hale

snitched in order to “save [his] own freedom.” JA 277. An arrested informant in Hale’s position,

it is true, may have “a motivation to implicate and pass the blame to another,” Hill v. Hofbauer, 337

F.3d 706, 717 (6th Cir. 2003), and the use of such statements at trial may pose hearsay problems

when offered by the non-declarant, see United States v. Trujillo, 376 F.3d 593, 611 (6th Cir. 2004).

But Stuart is wrong to suggest that an officer may never rely on post-arrest statements in

investigating a crime or in seeking a warrant. Although Trujillo held that the arrested declarants in

that case had “a motive to lie, regarding the source of the marijuana, in order to get lenient

treatment” and thus their earlier statements could not be admitted under the hearsay exception for

prior consistent statements, see Fed. R. Evid. 801(d)(1)(B); Trujillo, 376 F.3d at 611, it also held that

the presence of the same post-arrest statements in a search-warrant affidavit did not establish “a

strong showing” of falsity sufficient to require a Franks hearing, id. at 604.

In this case, Officer Costley used Hale’s post-arrest statements to support a warrant

application. Hale knew that he faced a potential life sentence as a fourth-time offender, and Costley

could fairly use his statements on the theory that Hale would not aid his cause by leading the police

down a false trail. On this record, Costley was not unduly reckless when he included Hale’s

statements in the affidavit, especially since Hale merely identified his source for the marijuana and

did not attempt to shift blame away from himself or excuse his own possession.
No. 06-2279 United States v. Stuart Page 6

The last piece of evidence offered to impugn the affidavit’s reliability was Terrance

Wheeler’s sworn statement that Costley previously tried to elicit testimony from him incriminating

Stuart. But if Stuart was a suspect, why wouldn’t Costley ask others for information about him?

Thus, while Wheeler’s affidavit offers the unremarkable fact that Costley asked him, as opposed to

just Hale, for incriminating information about Stuart’s drug dealing, it does not show that Costley

pursued this lead recklessly or with any malicious intent, which is what is required to obtain a

Franks hearing. Stewart, 306 F.3d at 304.

D.

Stuart finally objects that the prosecutor’s references to perjury charges caused him and his

witnesses Mary Jo Marr and Anthony Marr not to testify, thereby denying him due process.

Defendants indeed have a due process right to present witnesses to establish a defense, Washington

v. Texas, 388 U.S. 14, 19 (1967), and this right precludes prosecutors and judges from improperly

threatening witnesses with perjury prosecution, Webb v. Texas, 409 U.S. 95, 97–98 (1972). “Webb, however, does not stand for the proposition that merely warning a witness of the consequences of

perjury demands reversal.” United States v. Pierce, 62 F.3d 818, 832 (6th Cir. 1995). To the

contrary, “the government has an obligation to warn unrepresented witnesses of [that] risk.” Id. To

establish a claim of witness intimidation, as a result, defendants must present “government conduct

which amounts to substantial interference with a witness’s free and unhampered determination to

testify” and must prove that any inappropriate conduct was not harmless. United States v. Foster, 128 F.3d 949, 953 (6th Cir. 1997). Stuart has not met this burden. 

Stuart claimed at sentencing that he would have testified but for the government’s perjury

threats, yet the record shows that no such threats occurred and that Stuart’s decision not to testify

was his own. The judge warned Stuart about the risks of testifying, including “the possibility

that . . . obstruct[ing] justice . . . [c]ould add to his offense scores in the determination of his

guideline range,” but the court made clear that an enhanced sentence was a “more likely risk than

perjury prosecution.” JA 354. The judge did not “want to have the record indicate that [Stuart was]

being openly threatened with perjury prosecution if he [took] the stand to testify,” and the

government agreed that it wanted Stuart to “make his own decision” and was “not threatening him

with anything.” JA 355–56. 

“You understand,” the court asked Stuart, “that the decision to testify or not to testify is

entirely your own?” JA 358. And Stuart responded, “Yes, your[] Honor.” Id. The prosecution

again “want[ed] the record to reflect that we’re not threatening the defendant with anything. His

decision to testify is his own, and we have no stake in that case.” JA 359. When Stuart expressed

confusion, the court explained, “the only real potential risk that you would take on if you testify, and

if it’s concluded that you lied in your testimony . . . is that your sentence could be increased under

the guideline calculation.” Id. Stuart responded, “I understand,” and reiterated his decision not to

testify. JA 360. Where, as here, the government did not threaten Stuart with perjury and the court

repeatedly told Stuart that the only material risk he ran was an enhanced sentence due to obstruction

of justice, he cannot show that the court or the government improperly interfered with his decision

to testify. 

As to Anthony and Mary Jo Marr, neither the government nor the judge made any statements

regarding perjury charges to them. At a plea-cutoff hearing, the government told the court that the

witnesses “should be advised they need to seek counsel because they may be setting themselves up

for jeopardy” by testifying that the date of the search was Sunday, March 23. JA 211. But this

statement was intentionally made outside the presence of these witnesses in order to fulfill the

prosecution’s recognized “duty,” JA 353, and the court declined to caution the witnesses “given the

chilling effect that such a warning might have for them to testify,” JA 212. Stuart’s counsel even

admitted that the prosecution never directly threatened these witnesses, stating that she herself
No. 06-2279 United States v. Stuart Page 7

relayed that the government “would prosecute [them] for perjury.” JA 353. On this record, as the

district court correctly concluded, no misconduct occurred. 

Even if there had been misconduct, it bears adding, it could not have affected the outcome

of the trial. Keep in mind that these witnesses would have testified only about the date of the

search—which, as we have explained, had no bearing on the question of guilt. The court considered

their potential testimony at the suppression hearing and ruled the search constitutional. Stuart thus

had nothing more to gain from their testimony at trial.

III.

For these reasons, we affirm.