United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3813

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United States of America, *

*

Appellee, *

* Appeals from the United States 

v. * District Court for the Southern

* District of Iowa.

Romaine Dukes, *

*

Appellant. *

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No. 97-4047

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United States of America, *

*

Appellant, *

*

v. *

*

Adolphus Archibald Mullings, *

*

Appellee. *

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Submitted: June 9, 1998

Filed: July 16, 1998 

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Before FAGG, BRIGHT, and BEAM, Circuit Judges.
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BEAM, Circuit Judge.

 Romaine Dukes and Adolphus Archibald Mullings were named in a superseding

indictment charging them with several drug crimes. Mullings was charged as follows:

count 1—conspiracy to distribute and possess with intent to distribute cocaine base in

violation of 21 U.S.C. § 846, and counts 2 through 7—distribution of Schedule II

controlled substance, cocaine base, in violation of 21 U.S.C. § 841(a)(1). Dukes was

charged in counts 1, 6 and 7. A motion to sever was denied and they were tried

together before a jury.

Mullings was found guilty of all counts except for the offense charged in count

2. Dukes was found guilty of all three charged counts.

The district court, finding Mullings qualified for the so-called "safety valve"

provision found at section 5C1.2 of the United States Sentencing Guidelines and 18

U.S.C. § 3553(f), imposed a sentence of 132 months' imprisonment plus ten years'

supervised release. Dukes was sentenced to life imprisonment plus ten years of

supervised release.

Dukes appeals his conviction and sentence and the United States appeals the

safety valve sentence imposed upon Mullings. We affirm.

I. BACKGROUND

The Iowa Division of Narcotics Enforcement (IDNE) received information

concerning drug trafficking in the Davenport, Iowa, area. Arrangements were made for

a confidential informant (CI) and IDNE officers to purchase, in controlled buys, cocaine

base (crack) from various individuals including Mullings. At least two relevant
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purchases were observed by IDNE agents who spoke directly with Mullings at the time.

Officers of the Quad Cities Metropolitan [Drug] Enforcement Group (MEG) were also

enlisted to assist in the investigation. Eventually, Dukes was observed and later

identified as a participant in the drug transactions being carried out between Mullings,

the CI, and the law enforcement agents. These transactions included transfers that

occurred on December 17, 1996, and January 7, 1997, at the West Campus of the

Genesis Hospital in Davenport. After the January 7, 1997, interchange, Mullings was

arrested following a short foot chase. Although at or near the hospital at the time,

Dukes managed to escape from the vicinity and was later arrested in Chicago. Other

more specific facts necessary for a discussion of the issues will be included as needed.

II. DISCUSSION

A. Dukes

Dukes asserts that a judgment of acquittal or a new trial should be ordered. He

claims that (1) trial testimony concerning a confession by codefendant Mullings

improperly incriminated him in violation of the confrontation clause of the Sixth

Amendment; (2) the government knowingly presented false testimony, inconsistent

theories of guilt and improper jury arguments; (3) his due process was violated by the

introduction of unreliable identification testimony; (4) the court erred in not suppressing

evidence from an apartment search conducted with a warrant obtained after presentation

of an affidavit containing recklessly false information; (5) there was insufficient

evidence to convict; (6) the court erred in admitting into evidence a firearm found in his

apartment because its probative value was outweighed by its unfairly prejudicial effect;

(7) the court erred in failing to grant a new trial because the verdict was against the

weight of the evidence; and (8) the court erred in counting a prior conviction in

assessing his sentence.
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As a result of an injury incurred in the course of his arrest, Mullings was

hospitalized at the West Genesis facility. During this inpatient treatment time, Mullings

gave a statement to the police that implicated both himself and Dukes. However,

Mullings did not testify at the trial.

Dukes raised objections to the use of inculpatory information concerning his

participation in the charged offenses contained in Mullings's communications to IDNE

and MEG officers. The objections were based, at least in part, on confrontation clause

limitations established by Bruton v. United States, 391 U.S. 123 (1968). For various

reasons, the objections were sustained and the trial court disallowed government use of

the Mullings statement at trial.

The Mullings confession contained references to Dukes's use of the street name

"Chip." Mullings, while at the hospital, consented to the search of his apartment. This

search produced a slip of paper containing the name Chip. One of the IDNE officers

testified that the paper was found in the search and that it was seized because the officer

was aware that Mullings's source of supply was a person called Chip. Dukes claims this

testimony was a violation of Bruton because, in his view, the jury must have concluded

that this information came from Mullings's confession. However, other witnesses

established Dukes's usage of the name. Indeed, there was testimony from the same

officer that his source of information about a person known as Chip being Mullings's

source of supply emanated from a trial witness who had transported Chip (Dukes) to the

hospital on the afternoon of January 7. Given this testimony and other trial evidence

linking Dukes to the street name of Chip, we fail to see a Bruton violation.

A search warrant for Dukes's apartment was issued by a state magistrate judge

based upon an affidavit now challenged by appellant. The issuing judge also received

sworn testimony from a MEG agent who testified that he had obtained the apartment

address from Dukes's girlfriend. A statement in the affidavit indicated that a vehicle
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registered to Dukes was seen at the last two purchases of drugs from Mullings. This

automobile information was admittedly false, but, according to the government, not

recklessly false, since Dukes was seen at the last two purchases and his car was seen

at a November 26, 1996, sale. The government claims that this was nothing more than

a modestly negligent mistake made by the attesting officer. Dukes also claims that the

woman supplying the address was not his "girlfriend" in the usual sense. Although the

friend was apparently not a person with whom Dukes had an intimate relationship, she

was, without dispute, a woman and a friend.

Franks v. Delaware, the seminal case on the effect of the use of false information

in a search warrant affidavit, requires a challenger of a warrant to show (1) that the

affidavit contained false statements; (2) that the statements were material to the issue

of probable cause; and (3) that the false statements were made knowingly and

intentionally or with reckless disregard for the truth. 438 U.S. 154, 171-72 (1978).

Dukes's attack on the constitutionality of the search warrant fails on two grounds. First,

even discounting the allegedly false statements, the affidavit was more than sufficient

to establish probable cause to search. Second, the "girlfriend" reference was not false

and the automobile reference was both immaterial and certainly not intentionally or

recklessly advanced under all the facts. Thus, this challenge fails.

As noted, Dukes advances several additional challenges. We have examined

each of them carefully in light of the record and the prevailing law of this circuit. Upon

so doing, we find them to be without merit.

B. Mullings

The government contends that the district court erred in concluding that Mullings

qualified for the so-called safety valve provision somewhat recently added to the United

States Sentencing Guidelines. In this regard, the United States claims that
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Mullings did not provide a complete and truthful statement concerning the offenses and

that attempts to question him after his arrest were thwarted.

Section 5C1.2 provides that the court will impose the applicable guidelines

sentence, without regard to any statutory minimum, if

not later than the time of the sentencing hearing, the defendant has

truthfully provided to the Government all information and evidence the

defendant has concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan, but the fact that

the defendant has no relevant or useful other information to provide or that

the government is already aware of the information shall not preclude a

determination by the court that the defendant has complied with this

requirement.

U.S. Sentencing Guidelines Manual § 5C1.2 (1998). 

Although the defendant must show that he has provided complete and truthful

information, see United States v. Weekly, 118 F.3d 576, 581 (8th Cir. 1997), nothing

in the guideline or statute specifies the form or place or manner of disclosure, see

United States v. Montanez, 82 F.3d 520, 522 (1st Cir. 1996). At the Genesis Hospital,

on the evening of January 7, 1997, Mullings provided information about the various

crimes including the identification of Dukes as a participant, the location of Mullings's

residence, and many other details.

After receiving evidence at the sentencing hearing concerning this information

exchange, the trial court found that Mullings had truthfully provided all information and

evidence he had concerning the offenses. In our view, this finding was not clearly

erroneous. See United States v. Romo, 81 F.3d 84, 86 (8th Cir. 1996). Thus, the

government's challenge is also without merit.
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III. CONCLUSION

Accordingly, we affirm the conviction and sentence of Dukes and affirm the

sentence imposed upon Mullings.

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.