The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1468

___________ United States of America, * * Appellee, * * v. * Appeal from the United States District * Court for the Northern District of Iowa. Terrence Eugene Goodson, * * Appellant. *

___________ Submitted: October 21, 1998 Filed: January 11, 1999

___________ Before WOLLMAN, ROSS and BEAM, Circuit Judges.

___________ ROSS, Circuit Judge.

Terrence Eugene Goodson appeals from a judgment of the district court 1 followin g his conviction for possession with the intent to distribute cocaine base, i n violation of 21 U.S.C. § 841 (a)(1). We affirm.-2-

Around 1:00 A.M. on March 11, 1996, Waterloo, Iowa police officer Mark Meyer applie d for a warrant to search Goodson's home for crack cocaine. In hi s application, Meyer stated he had known Goodson for a number of years and had heard from concerned citizens and confidential informants that Goodson was involved with trafficking crack cocaine. In particular, Meyer stated that a reliable informant ha d advised him tha

t Goodson lived with LaTanya Graves at 607 Donald Street, in recent days Good son was selling crack cocaine from that address, and on March 10 ther e
were s everal vehicles parked for short periods of time in front of the house. Meye r indicated that utilities for the address were listed in Graves' name and several vehicles, includ ing a red Mercedes Benz, were registered to her at that address. Meyer als o stated that another informant had observed Goodson s elling crack cocaine from the red Mercedes and a third informant had purchased crack cocaine from a woman, wh o obtained it from Goodson. In an attachment, Meyer indicated that he had known one of the informants for seven years and the informant had supplied reliable information leading to over 40 arrests, seizure of contraband and various criminal charges.
Shortly after a state court judge issued the warrant, at 1:44 a.m. state la w enforcement officers arrived at Goodson's home. They knocked twi ce, announced their presence, and waited twenty s econds before forcibly entering the house. Once inside, Meyer read

Goodson his Miranda

rights and asked him if there were any drugs in the house. Goodson led Meyer to a closet where Goodson retr ieved a shoe box containing a large amount of crack cocaine. Officers also seized other items, including a briefcase containing small pieces of crack cocaine. During an interview at the police station , Goo dson admitted that the crack cocaine belonged to him and also stated that he had sold an additional ten ounces of crack cocaine.-3-

After indictment, Goodson filed a motion to suppress, asserting the warrant was

un supported by probable cause and the nighttime, forcible entry was illegal. He als o requested a hearing under Franks v. Delaware , 438 U.S. 154 (1978). The court denied hi s request for a Franks hearing, but held an evidentiary hearing on the suppressio n motion. After the court denied the motion, Goodson filed a renew ed motion to suppress and renewed request for a Franks hearing. The court again denied the motion and the request and the case proceeded to trial.

At trial, among other things, the government presented Meyer's testimony, th e testimo ny of a chemist, and introduced the seized drugs. Before trial, the government had inform ed Goodson that other items seized during the search, including the sho e box, a cellular telephone, an electronic memo device, and an address book, wer e missing. Dennis Heiser, a police p roperty technician, testified that after he received an order from t he county clerk advising him that the items were no longer needed fo r pending proceedings, pursuant to routine, he destroyed items with no monetary value and offered items with value f or sale. Heiser, however, admitted, he had failed to read

an attachment to the order informing him of the federal proceedings and claimed that in his five years with the police department this was the only time he had accidentally destroyed evidence. Meyer had also testified that he could not recall any other time that eviden ce had been mistakenly destroyed. The court instructed the jury that if it found that the lost or destroyed evidence was ma terial, it could infer the evidence would have been unfavorable to the government. The jury returned a verdict of guilty.

Afterthe verdict, Goodson's counsel learned from an attorney that Heiser ha d destroyed evidence in other cases. Goodso n then filed a post-trial motion for judgment-4-

of acquittal or, in the alternative, for a new trial, asserting due process violations. The prosecutor filed a statement indicating that after c losing arguments Meyer had informed him that Heiser might have accidentally destroyed evidence in two other federal cases. The prosecutor

further stated that after investigation he told the defense counsel in the other cases about the missing evidence, but did not inform Goodson's counsel. Heiser filed a statement indicating that because he failed to read attachments in other orders, he had mistakenly destroyed evidence in the two cases, but at the time of his testimony did not know of his mistakes. After a hearing, the court rejecte d Goodson's due process claims, finding that the prosecutor was unaware at the time of Heiser's testimony that he had destroyed evidence in other cases, that Heiser had not acted in bad faith, and that the missin g evidence in Goodson's case was not materially exculpatory. Although the court denied Goodson's motion for judgment of acquittal, in the interests of justice, it granted his motion for a new trial.

Ins tead of facing a second trial, Goodson entered into a conditional guilty plea, reserving the right to appe al the denials of his motions to suppress and for judgment of acquittal. At the change of plea hearing, Goodson admitted that he possessed 66 grams of co caine base with the intent to distribute and was thus subject to the ten-year mandatory minimum sentence of 21 U.S.C. § 841(b )(1). However, he disputed that the cocaine base was crack cocaine within the meaning of U.S.S.G. § 2D1.1(c).
At the sentencinghearing, the government introduced a police laboratory report describing the seized d

rugs as cream-colored chunks. In addition, Meyer testified that the seized drugs were hard and gravel-like and, based on his experience, looked lik e crack cocaine. Meyer also testified that Goodson referred t o the drugs as crack cocaine-5-

and had admitted to distributing an additi onal ten ounces (280 grams) of crack cocaine. At t he conclusion of the hearing, the court, after looking at the drugs and creditin g Meyer's testimony, found t hat Goodson had possessed with the intent to distribute 346 grams of crack cocaine. The court refused Goodson's motion for a downward departure and sentenced him to 135 months.
On appeal, Goodson argues that the district court erred in denying his request for

a Franks hearing and his suppression motions. In support of both arguments, Goodson notes that Meyer failed to state how he knew Goodson, to specifically identify which informant he

was describing in the attachment, to detail the reliability of the two other in formants, and did not confirm the short-term traffic in front of the house. Becaus e Go odson did not make a "substantial preliminary showing" that Meyer included " a fals e or reckless statement or omission” and “that the alleged false statement o r omission was necessary to the probable cause determination[,]" the court did not err in refusing his r

equest for a Franks hearing. United States v. Milton , 153 F.3d 891, 896 (8th Cir. 1998) (internal quotation omitted).

In deed, as the court observed, Goodson's Franks challenge is essentially a pro bable cause challenge, which is without merit. Search warrant "[a]pplications and affida vits should be read with common sense and not in a grudging, hyper technica l fashion ." Walden v. Carmack , 156 F.3d 861, 870 (8th Cir. 1998). Reading Meyer' s app licationin such a fashion, we agree with the district court that it is clear that th e attachmen t

detailing the informant's reliability refers to the "first and predominant " informan t who provided the information that Goodson was selling crack cocaine from 607 Donald Street. We have repeatedly held that " '[t]he statements of a reliable-6-

confidential informa

nt are themselves sufficient to support probable cause for a search warrant' " and that " '[t]he reliability of a confidential informant can be established i f the pe rson has a history of providing law enforcement officials with truthfu l informat ion.' " United States v. Formaro , 152 F.3d 768, 770 (8th Cir. 1998) (quotin g United States v. Wright , 145 F.3d 972, 974-75 (8th Cir.), cert. denied , 119 S. Ct. 272 (1998)). Thus, even if Meyer had excluded the information from the two othe r informants and about the short-term traffic or included information that he had neve r arrested Goodson, his application would have supported p robable cause. We also note that even though the other two informants may not have had a track record o f

re liability, their tips corroborated the first informant's tip and to some extent eac h other's tips, which also "render[s] their information enough to support a finding o f probable cause." United States v. Fulgham , 143 F.3d 399, 401 (8th Cir.1998).

Goodson also challenges the manner of execution of the warrant. Although he

co ncedes that Iowa law permits nighttime execution of search warrants, Iowa Cod e Ann

. § 808.5, he contends that the search violated Fed. R. Crim. P. 41(c)(1), whic h provides as a general rule for daytime execution of warrants. His argument is without merit. "When federal officers are a significant part of a search conducted pursuant to a state wa rrant," federal standards may apply. United States v. Murphy , 69 F.3d 237, 242 (8 th Cir. 1995), cert. denied , 516 U.S. 1153 (1996). However, "[n]othing in th e record i ndicates that federal officers participated in the initial entry and search o f [Goodso n's] residence." Id. Indeed, there was no federal involvement in the search

. A state court judge issued the warrant based on a state officer's applicatio n and state law enforcement officials executed the warrant. Although Meyer called an Assistant United States Attorney after the discovery of a large amount of crack cocaine, that actLucht concerned the appl ication of the federal knock-and-announce statute, 18 2 U.S.C. § 3109, w hich we may look to for guidance since it codifies the common-law. See United States v. Ramirez , 118 S. Ct. 992, 997 (1998). -7- did not sub

ject the search to federal standards. See id. Thus, " ‘[t]he proper standard in this case is whether the state officials complied with . . . the Fourth Amendment . . ..' " Id. (quoting United States v. Moore , 956 F.2d 843, 848 (8th Cir. 1992)).
We also reject Goodson's argument that the fo rcible entry into his house violated the common-law knock-and-announce requirement, which is " 'part of th e
reasona bleness inquiry under the Fourth Amendment.' " Id. (quoting Wilson v

. Ark ansas , 514 U.S. 927, 929 (1995)). "The determination of whether an officer wa s jus tified in forcing entry after announcing his presence and purpose does not turn o n any hard and fast time limit, but depends upon the circu mstances confronting the officer serving the warrant." United S tates v. Lucht , 18 F.3d 541, 549 (8th Cir.), cert. denied , 513 U.S. 949 (1994). "The need to force entry may result from danger to the safety 2 of the entering officers or from the imminent destruction of evidence." Id. In th e circumstance s of this case, the forced entry was reasonable. See id. (forced entrie s reasonable where officers waited 6 - 8 seconds and 5 - 10 seconds). Meyer testified that he believed waiting twenty seconds after knocking loudly and announcing th e officers' presence and purpose was reasonable, cons idering the size of the house, which
was a one-story ranch house, and the potential that the residents could flush crac k cocaine down a toilet. Meyer also testified that because Goodson had a record fo r assault wit h a deadly weapon, Meyer feared waiting any longer could jeopardize th e officers' safety.Goodson argues that if the cell phone, address book, or memo device had been 3 avail able, perhaps he could have shown that they contained telephone numbers o r addresses of f

amily and friends, not drug dealers. He also argues that if he had th e shoe box, he might have show n it did not have his fingerprints on it, which, he claims, wou ld have impeached Meyer's testimony. We agree with the district court that th e unavailable evidence was only potentially exculpatory and, in any event, would b e minimally, if at all, useful. -8- Goodson next argues that the district court erred in denying his motion fo r ju dgment of acquittal. Because Goodson offers no reason to undermine the court' s findings that Heiser did not act in bad faith or that the missing evidence was no t materially exculpatory, he cannot establish a violation under Brady v. Maryland , 373 3 U.S. 83 (1963), or Arizona v. Youngblood , 488 U.S. 51 (1988). See United States v. Jones , 160 F.3d 473, 479 (8th Cir. 1998) (no Bradyviol ation where evidence had "little

or no e xculpatory value"); United States v. Weise , 89 F.3d 502, 504 (8th Cir. 1996 ) (" failure to preserve potentially useful evidence does not violate [ Youngblood ] unless the defendant can show the police acted in bad faith").

We also re

ject Goodson’s argument that an acquittal is warranted because th e pr osecution knowingly presented false testimony to the jury. It is true that "[t]h e prosecution may not use or solicit false evidence, or allow it to go uncorrected." United States v. Martin , 59 F.3d 767, 770 (8th Cir.1995) (citing Giglio v. United States , 405 U.S. 150 , 154 (1972)). There is no evidence suggesting that at the time of Meyer's or Heiser's testimony that they or the prosecutor knew that evidence had been destroyed in other cases. Even if we assume that Heiser and Meyer testified falsely and impute their knowledge to t

he prosecutor, Goodson cannot prevail on a claim of prosecutorial use of false testimony because "there is [no] reasonable likelihood thatBecause the district court did not err in sentencing Goodson to 135 month s 4 under t he guidelines, we do not address his argument concerning the definition o f cocaine base under 21 U.S.C. § 8 41(b)(1), which provides a mandatory minimum tenyear sentence for possession of more than 50 grams of cocaine base. -9- the [f alse] testimony could have affected the jury's judgment." Id. (internal quotation omitt ed). In any event, even if he could make such showing, in the circumstances o f this case, all Goodson would be en titled to receive is what the district court, exercising its superviso ry authority, ordered -- a new trial. See Giglio , 405 U.S. at 155

.

Goodson al so challenges his sentence. Contrary to his argument, the distric t court did not err in finding that the cocaine base was crack cocaine within the meaning of the Sentencing Guidelines. Section 2D1.1(c), note D, provides tha t " ‘cocaine base,’ for the purposes of this gui deline, means 'crack.' ‘Crack’ is the street name for a form of cocaine base, usually . . . appearing in a lumpy, rocklike form." Although under the guideline "forms o f cocaine base other than crack ( e.g ., coca paste . . .) will be treated as cocaine," id. , "there was no evidence here that [Goodson] was dis tributing coca paste or other exotic forms of cocaine base." United States v. B rown , 156 F.3d 813, 816 (8th Cir. 199 8). Indeed, the only evidence was that the seized drugs were crack cocaine

. Meyer described the drugs as hard, rocklike substances and testified that Goodso n referred to the drugs as crack cocaine. See United States v. Stewart , 12 2 F.3d 625, 627 (8th Ci r. 1997) (upholding crack finding based on drugs' rocklike appearance). No r 4

was the district court's finding that Goodson was responsible for 384 grams of crac k cocaine clea

rly erroneous. The court credited Meyer's testimony concerning quantity, and we defer to that finding.Goodson raises other arguments, which were not properly preserved for appeal 5 or inappropriately raised in a so-called Anders brief. We nonetheless have reviewed them and find they are without merit.

-10- Goodson als o argues that the district court erred in refusing his request for a downward departure based on alleged prosecutorial misconduct. Although the court was uncertain whether it had the authority to depart downward in such a circumstance, it assumed it did, but refused to do so. Even if the court had the power to depart, which
we doubt, see United States v. Janis , 69 F.3d 914, 915 (8th Cir. 1995) (per curiam ) ("distri ctcourt cannot depart where the only purpose of the departure is to dete r government misconduct" which "had no relationship to [defendant's] culpability"), we will not review its discretionary refusal to depart downward. Id.
Accordingly, we affirm the judgment of the district court. 5
A true copy.

Attest:

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