## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3813

___________ United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the Southern * District of Iowa. Romaine Dukes, * * Appellant. *

___________ No. 97-4047

___________ United States of America, * * Appellant, * * v. * * Adolphus Archibald Mullings, * * Appellee. *

___________ Submitted: June 9, 1998 Filed: July 16, 1998

___________ Before FAGG, BRIGHT, and BEAM, Circuit Judges.-2- ___________ 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—cons piracy to distribute and possess with intent to distribute cocaine base in vi olation of 21 U.S.C. § 846, and counts 2 through 7—distribution of Schedule I I controlled substance, cocaine base, in violation of 21 U.S.C. § 841(a)(1). Dukes was charg ed in counts 1, 6 and 7. A motion to sever was denied and they were trie d 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 dist rict court, finding Mullings qualified for the so-called "safety valve " pro visionfound at section 5C1.2 of the United States Sentencing Guidelines and 1 8 U.S.C. § 3553(f), imposed a sentence of 132 months' imprisonment plus ten years ' supervise d release. Dukes was sentenced to life imprisonment plus ten years o f supervised release.
Duke s appeals his conviction and sentence and the United States appeals th e safety valve sentence imposed upon Mullings. We affirm.
I. BACKGROUND
The Iow a Division of Narcotics Enforcement (IDNE) received informatio n 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-3-

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 en listedto assist in the investigation. Eventually, Dukes was observed and late r identified as a

participant in the drug transactions being carried out between Mullings, the CI , and the law enforcement agents. These transactions included transfers tha t occurred on December 17, 1996, and January 7, 1997, at the West Campus of th e Genesis Hosp ital in Davenport. After the January 7, 1997, interchange, Mullings was arres ted 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 necess ary for a discussion of the issues will be included as needed.
II. DISCUSSION
A. Dukes
Dukes asser

ts that a judgment of acquittal or a new trial should be ordered. He cla ims that (1) trial testimony concerning a confession by codefendant Mulling s imprope rly incriminated him in violation of the confrontation clause of the Sixt h Amendment; (2) the government knowingly presented false testimony, inconsisten t theor ies 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 affi davit containing recklessly false information; (5) there was insufficien t evidence to convict; (6) the court erred in admitti ng into evidence a firearm found in his apartment because its probative value was o utweighed by its unfairly prejudicial effect; (7) the court erred in failing to grant a new trial because the verdict was against th e weigh t of the evidence; and (8) the court erred in counting a prior conviction i n assessing his sentence.-4-

As a re sult of an injury incurred in the course of his arrest, Mullings wa s hospitalized at the West Genesis facility. During this i npatient treatment time, Mullings ga ve a statement to the police that implicated both himself and Dukes. However , Mullings did not testify at the trial.
Dukes rai sed objections to the use of inculpatory information concerning hi s 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 t he trial court disallowed government use of the Mullings statement at trial. The Mullings con fession 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 seiz ed because the officer was aware that Mullings's source of supply was a person called Chip. Duke s claims this testimony was a violation of Bruton becau se, in his view, the jury must have concluded that this information came from Mullings's confession. However, other witnesse s establishe d Dukes's usage of the name. Indeed, there was testimony from the sam e offi cer 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 C hip (Dukes) to the hosp ital on the afternoon of January 7. Given this testimony and other trial evidenc e linking Dukes to the street name of Chip, we fail to see a Bruton violation.
Asearch 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 apartmen t address from Dukes's girlfriend. A statement in the affidavit indicated that a vehicle-5-

registered to Dukes was seen at the last two purchases of drugs from Mullings. Thi s automobi le information was admittedly false, but, according to the government, no t recklessly false, since Dukes was seen at the last two purchases and his car was seen at a November 26, 1996, sale. Th e government claims that this was nothing more than a modestly negligent mis take made by the attesting officer. Dukes also claims that the woman supplying the addres s 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 sear ch warrant affidavit, requires a challenger of a warrant to show (1) that th e affidavit contained false statements; (2) that the statements were material to the issue of p robable cause; and (3) that the false statements were made knowingly an d intentionall y 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 p robable cause to search. Second, the "girlfriend" reference was not false and the automobile reference was both immaterial and certainly not intentionally o r recklessly advanced under all the facts. Thus, this challenge fails.
As noted, Dukes advances several additional challenges. We have examine d 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 erre d in concluding that Mullings qualified for the so-called safety valve provision somewhat re cently added to the United States Sentencing Guidelines. In this regard, the United States claims that-6-

Mullings did not provide a complete and trut hful statement concerning the offenses and that attempts to question him after his arrest were thwarted.
Section 5 C1.2 provides that the court will impose the applicable guideline s sentence, without regard to any statutory minimum, if

not la ter than the time of the sentencing hearing, the defendant ha s truthfully provided to the Government all information and evidence th e defendant has concerning the offense or offenses that were part of th e same cours e of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other informa tion 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 thi s requirement. U.S. Sentencing Guidelines Manual § 5C1.2 (1998).
Altho ugh the defendant must show that he has provided complete and truthfu l information, see United States v. Weekly , 118 F.3d 576, 581 (8th Cir. 1997), nothing in the guid eline or statute specifies the form or place or manner of disclosure, se e 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 variou s crimes including t

he 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 informatio n exchange, the trial court found that Mullings had truthfully provided all information and evid ence he had concerning the offenses. In our view, this finding was not clearl y erroneous . See United States v. Romo , 81 F.3d 84, 86 (8th Cir. 1996). Thus, th e government's challenge is also without merit.-7-

III. CONCLUSION Accordingl y, we affirm the conviction and sentence of Dukes and affirm th e sentence imposed upon Mullings.

A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.