United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-3600

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Riley Carnahan, *

*

Defendant - Appellant. *

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Submitted: April 18, 2012

 Filed: July 12, 2012

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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

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LOKEN, Circuit Judge.

Riley Carnahan entered a conditional guilty plea to charges that he conspired

to distribute at least five kilograms of cocaine and 100 kilograms of marijuana in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)-(B), and 846, and possessed a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A). He appeals district court orders denying his motions to suppress

1

The Honorable John A. Jarvey, United States District Judge for the Southern 1

District ofIowa, adopting the Report and Recommendation ofthe Honorable Thomas

J. Shields, Chief United States Magistrate Judge for the Southern District of Iowa.
evidence and for a Franks hearing, and his request to plead guilty to the conspiracy 2

charge without admitting drug quantities alleged in the indictment. We affirm.

I. The Warrant Search Issues

On April 23 and 25, 2010, police officers from Bettendorf and Davenport,

Iowa, applied for warrants to search Carnahan’s residence in Bettendorf and his

business, the Penny Juice Company, in Davenport, submitting nearly identical

supporting affidavits. Two Iowa magistrate judges issued the warrants. Officers

executing the warrants on April 30 seized cocaine, marijuana, prescription pills, guns,

cash, scales, packaging material, and drug paraphernalia. Following his indictment,

Carnahan moved to suppress this evidence, arguing the warrants lacked probable

cause. He later moved for a Franks hearing on the ground that the supporting

affidavits “deliberately omitted relevant information.” On appeal, he argues the

district court erred in denying both motions.

Although the warrant affidavits included other supporting information, the

issues raised on appeal turn on the description of three controlled buys conducted

after an anonymous tip and extensive surveillance led police to suspect ongoing drug

trafficking at Carnahan’s residence and at Penny Juice Company. The affidavits

recited that the controlled buys were made using a confidential informant designated

John Doe. The first two buys -- one at Penny Juice Company, the other at the

residence -- took place “within the last forty-five days” before the warrant

applications. The third was made at Penny Juice Company “within the last seventytwo hours.” The affidavits described use of nearly identical procedures for each

transaction. The Penny Juice affidavit described the first buy as follows:

Franks v. Delaware, 438 U.S. 154 (1978). 2

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The purchase was made by John Doe. That prior to the controlled

purchase Your Affiant’s Fellow Officer conducted a search ofJohn Doe

and no contraband or United States Currency was found on the person

of John Doe. That after the search John Doe was kept under constant

surveillance by Your Affiant and Your Affiant[’]s Fellow Officers. Sgt.

Kees[h]an provided John Doe with prerecorded United States Currency

which was to be used for the purchase of powder cocaine. Your

Affiant’s Fellow Officers[] then observed John Doe proceed directly to

the business named Penny Juice . . . where John Doe entered . . . . John

Doe remained for a short time then exited. John Doe then returned to

Your Affiant’s Fellow Officer. John Doe was kept under constant

surveillance by Your Affiant’s Fellow Officers and John Doe had no

opportunity to go to any other business . . . and . . . had no opportunity

to pick up anything from the ground or to meet with anyone going to or

leaving the business. That once John Doe returned to Your Affiant’s

Fellow Officer’s location John Doe immediately relinquished the

purported powder cocaine to Your Affiant’s Fellow Officer. . . . John

Doe stated John Doe did purchase the powder cocaine from Carnahan

while inside the Penny Juice . . . building.

The powder tested positive for cocaine.

1. Carnahan first argues the district court abused its discretion in denying his

motion for a Franks hearing because he made an adequate preliminary showing that

the police officers knew and intentionally failed to disclose that John Doe had prior

misdemeanor convictions relating to bad checks, was now cooperating with law

enforcement to avoid a misdemeanor cocaine possession charge, and was believed to

have engaged in recreational cocaine use. He asserts that these non-disclosures

rendered materially false the officers’ averrals that John Doe was a mature person of

truthful reputation who had no motive to falsify information. 

To warrant a hearing on the ground that material information was omitted from

a warrant affidavit, defendant must make a “substantial preliminary showing” of

deliberate falsehood or reckless disregard for the truth. United States v. Williams,

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477 F.3d 554, 557-58 (8th Cir. 2007). Here, there was no showing of deliberate

falsehood. The officers never said the informant had no criminal history. Rather,

they checked boxes on the state court warrant application form saying the informant

was of truthful reputation and had no motivation to falsify information, and then

explained that John Doe demonstrated truthfulness because his information was

corroborated by an anonymous tip, ongoing surveillance, and the controlled buys. 

“[B]ecause a warrant application need only show facts establishing probable

cause, reckless[ disregard for the truth] may be inferred from the omission of

information froman affidavit only when the material omitted would have been clearly

critical to the finding of probable cause.” United States v. Smith, 581 F.3d 692, 695

(8th Cir. 2009) (quotation omitted). Omitting that a confidential informant has a

criminal record or is cooperating does not satisfy this rigorous standard when the

informant’s information is partially corroborated or his general credibility is

otherwise not significant to the probable cause inquiry. See, e.g., Williams, 477 F.3d

at 559-60; United States v. Rivera, 410 F.3d 998, 1002 (8th Cir. 2005); United States

v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990). Here, the officers personally observed

and monitored John Doe’s conduct in making controlled buys. The only information

John Doe provided was that, while inside, he purchased the cocaine from Carnahan. 

As explained in the affidavits, that information was at least partially corroborated and

in any event was not critical to establish probable cause for warrant searches of the

premises. The district court did not abuse its discretion in denying a Franks hearing.

3

Carnahan also argues that minor inconsistencies in describing the controlled 3

buys were false statements or made with reckless disregard for the truth. Some of the

alleged inconsistencies were not argued to the district court and therefore may not be

raised on appeal. See United States v. Neumann, 887 F.2d 880, 886 (8th Cir. 1989)

(en banc), cert. denied, 495 U.S. 949 (1990). None was material to the showing of

probable cause. See United States v. Formaro, 152 F.3d 768, 770-71 (8th Cir. 1998).

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2. Carnahan next argues that the warrant affidavitslacked a sufficient showing

of probable cause because the controlled buys were stale events and the earlier

anonymous tip and surveillance did not independently establish probable cause. The

affidavits recited that the police corroborated the anonymous tip with extended

surveillance followed by three controlled buys. The buys were conducted with the

kind of careful procedures that produce highly reliable evidence of ongoing drug

trafficking. See United States v. Rodgers, 732 F.2d 625, 630-31 (8th Cir. 1984). The

third buy, made within 72 hours of the warrant applications, can hardly be deemed

stale information. Moreover, “[i]n investigations of ongoing narcotics operations,

intervals of weeks or months between the last described act and the application for

a warrant does not necessarilymake the information stale.” United States v. Jeanetta,

533 F.3d 651, 655 (8th Cir.) (quotation omitted), cert. denied, 555 U.S. 1079 (2008). 

Having carefully reviewed the lengthy, detailed affidavits, we agree with the

district court that they showed “a consistent pattern of drug trafficking activity

spanning a six month period of time with no indication that the activity has ceased,”

and that “the issuing judge could fairly believe that each of the premisessought to be

searched would contain evidence of drug trafficking.” Here, as in United States v.

Montes-Medina, the totality of the information contained in the affidavits established

“a fair probability that contraband or evidence of a crime [would] be found in a

particular place,” 570 F.3d 1052, 1059-60 (8th Cir. 2009), quoting Illinois v. Gates,

462 U.S. 213, 238 (1983). Carnahan’s suggestion that the warrants lacked probable

cause because they were not executed for five to seven days after issuance is without

merit. See Formaro, 152 F.3d at 771. The motion to suppress was properly denied.

II. The Guilty Plea Issue

Count 1 of the indictment charged that Carnahan and others conspired “to

knowingly distribute at least five kilograms of a mixture containing cocaine and at

least 100 kilograms of a mixture containing marijuana.” Carnahan filed a motion

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seeking leave to “enter a guilty plea to Count 1, that is conspiracy to distribute

cocaine and marijuana in violation of [21 U.S.C. §§] 841(a)(1) and 846,” but stating 

he “is not willing to enter his plea to the quantities” alleged in the indictment. The

government opposed this motion. After briefing, the district court denied the motion

on the ground “that a defendant has no right to plead guilty to a charge other than that

in the indictment.” With the government’s agreement, Carnahan then entered a

conditional guilty plea to Counts 1 and 2, reserving the right to appeal thisruling. By

pleading to the drug quantities alleged, Carnahan became subject to a mandatory

minimum ten-year prison sentence and an increased statutory maximum sentence on

Count 1, see 21 U.S.C. § 841(b)(1)(A), plus a consecutive minimum five years on

Count 2. At sentencing, the parties agreed that no drug quantity findings were

necessary because the mandatory minimum sentences established a base from which

reductions based on the government’s substantial assistance motion would be

determined. After hearing evidence and argument on that issue, the court granted the

substantial assistance motion and sentenced Carnahan to 75 months in prison on

Count 1 and a consecutive 40 months on Count 2.

On appeal, Carnahan argues that the district court abused its discretion in

denying his guilty plea motion because “drug quantity is a sentencing enhancement

and not a formal element of the offenses set out in 21 U.S.C. § 841.” That assertion

is not entirely true -- drug quantity is an element of the offense when it increases the

statutory maximum sentence prescribed for an indeterminate quantity. See United

States v. Turner, 603 F.3d 468, 471 (8th Cir.), cert. denied, 131 S. Ct. 820 (2010);

United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008), cert. denied, 129 S. Ct.

2021 (2009); United States v. Sheppard, 219 F.3d 766, 767-69 (8th Cir. 2000), cert.

denied, 531 U.S. 1200 (2001). “A fact . . . that increases the maximum punishment

for an offense isthe functional equivalent of an element of a greater offense.” United

States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (quotation omitted), cert.

denied, 531 U.S. 1026 (2000). 

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A defendant pleads “to the indictment or information.” Fed. R. Crim. P.

10(a)(3). It logically follows, as the district court recognized, that “[a] defendant has

no absolute right to plead guilty to a charge other than that in the indictment.” United

States v. Michel-Galaviz, 415 F.3d 946, 948 (8th Cir. 2005). As the Ninth Circuit

explained in United States v. Gray, 448 F.2d 164, 168 (9th Cir. 1971), “a plea to a

lesser included offense may not be tendered, and cannot be accepted by the court,

unless the government consents. Even then, the better practice would be for the

government to file a superseding information or indictment charging the lesser

offense.” We reject dicta to the contrary in United States v. Thomas, 355 F.3d 1191,

1198 (9th Cir. 2004).

“A plea of guilty is the equivalent of admitting all material facts alleged in the

charge.” United States v. Apker, 174 F.3d 934, 940 (8th Cir. 1999); see United States

v. White, 408 F.3d 399, 402 (8th Cir.), cert. denied, 546 U.S. 1025 (2005); O’Leary

v. United States, 856 F.2d 1142, 1143 (8th Cir. 1988). The discretion to reject a

tendered guilty plea is most often exercised when the defendant cannot or will not

provide the adequate factual basis for the plea that Rule 11(b)(3) of the Federal Rules

of Criminal Procedure requires. See, e.g., United States v. Ajijola, 584 F.3d 763,

766-67 (7th Cir. 2009), cert. denied, 130 S. Ct. 2421 (2010); United States v.

Williams, 557 F.3d 556, 559-60 (8th Cir.), cert. denied, 130 S. Ct. 237 (2009); 

United States v. Martin, 528 F.3d 746, 750-51 (10th Cir.), cert. denied, 555 U.S. 960

(2008). Here, Carnahan’s motion declared that he was unwilling to agree to the drug

quantity allegations in Count 1 of the indictment. This resulted in an insufficient

factual basis for the offense charged, a sound reason for the district court’s exercise

of its discretion to reject the proffered plea, as we expressly held in United States v.

Brown, 331 F.3d 591, 594-95 (8th Cir. 2003). Brown is controlling precedent; the

denial of Carnahan’s plea motion must be affirmed. 

The judgment of the district court is affirmed.

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