1

The Honorable Mark W. Bennett, Chief Judge, United States District Court

for the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1448

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa

Joseph Tyler McDonald, *

* [UNPUBLISHED]

Appellant. *

___________

 Submitted: August 5, 2002

 Filed: August 28, 2002

___________

Before McMILLIAN, BOWMAN, and MURPHY, Circuit Judges.

___________

PER CURIAM.

Joseph Tyler McDonald appeals from the final judgment entered in the District

Court1

 for the Northern District of Iowa upon a jury verdict finding him guilty of

possessing cocaine and cocaine base with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). The district court sentenced appellant to 162 months

imprisonment and 8 years supervised release. On appeal, counsel has filed a brief and

moved to withdraw under Anders v. California, 386 U.S. 738 (1967), arguing for
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reversal that the search warrant application had material omissions that were withheld

intentionally or recklessly, and because of these omissions, the application did not

establish probable cause, and no reasonable police officer could have believed that

it established probable cause. In his pro se supplemental brief, appellant argues that

trial counsel was ineffective in various ways, and that the district court erred in

admitting into evidence at trial an audiotape of a controlled buy involving

McDonald’s selling drugs to an informant. For the reasons discussed below, we

affirm the judgment of the district court.

We agree with the district court that McDonald did not meet the legal standard

for invalidating a warrant based on material omission of facts. See United States v.

Buchanan, 167 F.3d 1207, 1210 (8th Cir.) (defendant must establish, inter alia, that

police officer omitted facts intentionally or recklessly), cert. denied, 528 U.S. 887

(1999). He does not dispute that the applying officer--who ran a National Crime

Institute Center (NCIC) criminal history check on the informant before applying for

the search warrant, which showed no criminal history--was unaware of her criminal

history, and he has not shown that an NCIC check is an inadequate method to verify

criminal history. Thus, McDonald has not shown that the officer acted intentionally

or recklessly.

We conclude that the search warrant application, with or without the omitted

information, established probable cause. See United States v. Pennington, 287 F.3d

739, 742 (8th Cir. 2002) (where informant supplied information that implicated

himself and defendant in drug activity, and police corroborated informant’s

information by arranging and monitoring controlled buy, search warrant application

was more than sufficient). We therefore need not reach appellant’s argument

regarding the application of the good-faith rule of United States v. Leon, 468 U.S.

897 (1984).
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McDonald’s ineffective-assistance claims should be raised in a 28 U.S.C.

§ 2255 motion, if at all. See United States v. Clayton, 210 F.3d 841, 845 n.4 (8th Cir.

2000). His allegation of evidentiary error by the district court fails because the

audiotape was played only as part of the defense’s evidence. See United States v.

Beason, 220 F.3d 964, 968 (8th Cir. 2000) (where defendant invited error, there can

be no reversible error).

Having reviewed the record independently pursuant to Penson v. Ohio, 488

U.S. 75 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we

affirm the judgment of the district court, grant counsel’s motion to withdraw, and

deny McDonald’s request for new counsel.

A true copy.

Attest:

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