United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3750

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the District of 

* Minnesota.

Jeffrey Mathew Jeanetta, *

*

Defendant - Appellant. *

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Submitted: June 9, 2008

Filed: July 7, 2008

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Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

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BYE, Circuit Judge.

Jeffrey Mathew Jeanetta appeals his convictions for conspiracy to distribute and

possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846, distribution of methamphetamine, 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A), and possession of a firearm by a felon, 18 U.S.C. §§ 922(g)(1),

924(a)(2) and 924(e). We affirm.
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I

In August 2005, state investigators received information from a confidential

informant connecting Jeanetta with drug trafficking. The informant stated Jeanetta

was selling between two and four pounds of methamphetamine each week out of his

residence. The investigator who interviewed the informant knew Jeanetta had two

prior drug-related felonies, and had received similar reports regarding Jeanetta over

the course of the previous year.

On August 30, 2005, at the behest of investigators, the informant went to

Jeanetta's residence and purchased one-quarter ounce of methamphetamine. Two

weeks later, the investigators applied for a search warrant. As probable cause for the

warrant, investigators cited the information from the informant, the controlled drug

buy, information from other sources indicating Jeanetta was dealing large quantities

of methamphetamine from the residence, and Jeanetta's prior drug-related felony

convictions. A warrant issued and the search uncovered: a modest amount of

methamphetamine, cocaine and marijuana; $5364 cash; scales; Ziploc bags; a twoway police radio and scanner; a list of police frequencies; night vision binoculars,

surveillance cameras on a detached garage with a video monitor hooked up to the

cameras; glass pipes for smoking drugs; and miscellaneous drug paraphernalia. While

executing the warrant, an individual drove up to the residence and was arrested when

a search of his vehicle uncovered methamphetamine, drug paraphernalia, drug notes,

and $2000 cash.

Jeanetta was arrested and taken into state custody. The next day, he was

interviewed by two investigators. After some initial reluctance, Jeanetta agreed to

cooperate and the investigators summoned an agent from the Drug Enforcement

Agency. Jeanetta told the DEA agent about several of his drug sources, including

names of individuals, physical descriptions, drug quantities purchased, cost of the

drugs, etc. After being debriefed, Jeanetta agreed to cooperate and arrangements were
1

The Honorable Susan Richard Nelson, United States Magistrate Judge for the

District of Minnesota.

2

The Honorable Donovan W. Frank, United States District Judge for the District

of Minnesota.

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made for him to begin making controlled buys from the named sources. In early

October 2005, before those plans came to fruition, Jeanetta absconded.

On October 12, 2005, a federal indictment was returned charging Jeanetta with

conspiracy to possess and possession with intent to distribute methamphetamine.

Eight months later, on June 1, 2006, Jeanetta was taken into custody by members of

a multi-jurisdictional task force. A search of the RV he was living in uncovered two

handguns. Jeanetta was returned to state custody and negotiated a plea agreement

with the state prosecutor to drug charges stemming from his arrest in 2005. After

pleading guilty to the state charges, Jeanetta was released to federal authorities on July

18, 2006, and arraigned on the federal indictment before a magistrate judge the next

day. 

On August 24, 2006, Jeanetta filed motions for discovery and suppression of

evidence seized in the search of his residence. On September 29, 2006, Jeanetta

moved to dismiss the indictment for violations of 1) the Speedy Trial Act, 2) his Sixth

Amendment right to a speedy trial, and 3) Rule 5(a) of the Federal Rules of Criminal

Procedure. On October 30, 2006, the magistrate judge1

 issued a report and

recommendation recommending the motions to suppress and dismiss be denied. On

November 28, 2006, the district court2

 adopted the report and recommendation.

On November 24, 2006, the government moved to continue the December 4,

2006, trial date. Jeanetta objected but the district court continued the trial until

January 9, 2007. On December 20, 2006, the government filed a superceding

indictment adding the weapons charges. Jeanetta moved a second time for dismissal
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based on violations of 1) the Speedy Trial Act, 2) his Sixth Amendment right to a

speedy trial, and 3) Rule 5(a) of the Federal Rules of Criminal Procedure. The

motions were again denied and trial commenced on January 9, 2007. Jeanetta was

convicted on all counts and sentenced to two life terms and one 360 month term. On

appeal, he argues:

1. The search warrant for his residence was unsupported by probable

cause and the district court erred in refusing to suppress the

evidence seized during the search; 

2. The forty-nine-day delay between the time of his arrest and the

arraignment before a federal magistrate judge violated Rule 5(a)

of the Federal Rules of Criminal Procedure and the district court

erred in refusing to dismiss the indictment as a sanction; 

3. The delay in bringing him to trial violated his Sixth Amendment

right to a speedy trial; and 

4. The district court erred in allowing a police officer to testify as an

expert about the drug-related significance of items seized during

the search of Jeanetta's residence. 

II

A. Search Warrant – Probable Cause

Jeanetta argues there was insufficient probable cause upon which to base a

warrant to search his residence and the evidence seized should have been suppressed.

He contends the warrant relied, in part, on the informant's controlled drug buy which

took place two weeks before the issuance of the warrant. According to Jeanetta, any

information gleaned by the informant during the drug buy was stale by the time it was

presented to the state court in support of the warrant.
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On appeal from the denial of a motion to suppress, we review the district court's

historical factual findings for clear error and its conclusions of law on the probable

cause issue de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996); United

States v. Grimaldo, 214 F.3d 967, 976 (8th Cir. 2000). The evidence as a whole must

provide a substantial basis for a finding of probable cause to support the issuance of

a search warrant. Grimaldo, 214 F.3d at 976. "Probable cause exists when the

affidavit sets forth facts sufficient to create a fair probability that evidence of a crime

will be found in the place to be searched." Id. (internal quotations omitted). When

reviewing the sufficiency of an affidavit to support a finding of probable cause, we

consider the totality of the circumstances. United States v. Searcy, 181 F.3d 975, 981

(8th Cir. 1999). "[W]e note that probable cause may be established by the

observations of trained law enforcement officers or by circumstantial evidence," id.,

and "[i]t is axiomatic by now that under the fourth amendment the probable cause

upon which a valid search warrant must be based must exist at the time at which the

warrant was issued, not at some earlier time." United States v. Button, 653 F.2d 319,

324 (8th Cir. 1981) (quoting United States v. Steeves, 525 F.2d 33, 37 (8th Cir.

1975)).

Courts consider the nature of the property sought in determining whether

probable cause was shown to exist on the date of the warrant. For example: 

Although there can be no precise rule as to how much time

may intervene between the obtaining of the facts and the

issuance of the search warrant, in dealing with a substance

like marihuana, which can be easily concealed and moved

about, probable cause to believe that it was in a certain

building on the third of the month is not probable cause to

believe that it will be in the same building eight days later.

Id. (quoting Ashley v. State, 241 N.E.2d 264, 269 (Ind. 1968)) (other citations

omitted).
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Standing alone, the fact the controlled buy was made two weeks before the

warrant issued does not render the information in the application stale. Probable cause

must exist when a warrant is issued, not merely at some earlier time, but "[t]here is no

bright-line test for determining when information is stale . . . , and the vitality of

probable cause cannot be quantified by simply counting the number of days between

the occurrence of the facts supplied and the issuance of the affidavit." United States

v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993). "Time factors must be examined in

the context of a specific case and the nature of the crime under investigation." Id.

Additionally, "[w]here continuing criminal activity is suspected, the passage of time

is less significant." United States v. Formaro, 152 F.3d 768, 771 (8th Cir. 1998)

("[T]he two and one-half weeks lapse did not negate the existence of probable cause

. . . .") (quoting United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996)). "In

investigations of ongoing narcotics operations, 'intervals of weeks or months between

the last described act and the application for a warrant [does] not necessarily make the

information stale.'" United States v. Ortiz, 143 F.3d 728, 732-33 (2d Cir. 1998)

(quoting Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991)); see also United

States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993) ("With respect to drug trafficking,

probable cause may continue for several weeks, if not months, of the last reported

instance of suspect activity.") (quoting United States v. Angulo-Lopez, 791 F.2d 1394,

1399 (9th Cir. 1986)).

We conclude the two week period between the controlled buy and issuance of

the warrant did not render the informant's information presumptively stale. Instead,

considering the totality of the circumstances, the information supported a belief

Jeanetta was engaged in an ongoing criminal enterprise and evidence of his illegal

activities would be found at his residence. Therefore, we affirm the district court's

denial of the motion to suppress. 
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B. Rule 5(a) – Arraignment before the Magistrate Judge

Jeanetta next argues the government violated Rule 5(a) of the Federal Rules of

Criminal Procedure by delaying his appearance before a magistrate judge for fortynine days following his arrest. According to Jeanetta, the district court should have

dismissed the indictment as a sanction for violating Rule 5(a).

Rule 5(a) of the Federal Rules of Criminal Procedure provides the arrested

person shall be taken without unnecessary delay before a magistrate judge.

The requirements of [Rule 5(a)] and the teachings of the Supreme Court

in McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United

States, 354 U.S. 449 (1957) are designed to frustrate law-enforcing

officers from detaining the arrested person for an unnecessary period of

time to enable the officer to extract a confession from the arrested

individual. But this salutary principle is not applicable where the person

under arrest is in the custody and under the control of local and not

federal officers, unless, of course, the state officers are acting at the

direction of or in concert with the federal officers, or there is

collaboration between the federal and state authorities. See Grooms v.

United States, 429 F.2d 839, 842-843 (8th Cir. 1970), and the numerous

cases there cited.

United States v. Morris, 445 F.2d 1233, 1236 (8th Cir. 1971).

When Jeanetta was arrested on June 1, 2006, he was taken into and held in state

custody until he entered a plea of guilty to the outstanding state charges. Upon

pleading guilty, Jeanetta was released into federal custody on July 18, 2006, and

arraigned the following day. Because Jeanetta was in state custody the entire time, the

protections of Rule 5(a) are not implicated. Further, Jeanetta offers no evidence to

suggest he was held in state custody at the direction of or in concert with federal

officers. Thus, there was no violation of Rule 5(a).
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C. Sixth Amendment Violation

Jeanetta contends his Sixth Amendment right to a speedy trial was violated by

the fifteen-month delay between his indictment in October 2005 and the trial in

January 2007. Notably, he does not allege a violation of the Speedy Trial Act, 18

U.S.C.A. § 3161(c)(1).

We consider four factors when applying a Sixth Amendment balancing test to

pretrial delay: 1) the length of delay; 2) the reason for delay; 3) whether the defendant

asserted the right to a speedy trial; and 4) whether the defendant suffered any

prejudice. Barker v. Wingo, 407 U.S. 514, 530 (1972). It would be unusual to find

the Sixth Amendment has been violated when the Speedy Trial Act has not. United

States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002).

A delay approaching one year may meet the threshold for presumptively

prejudicial delay requiring application of the Barker factors. Doggett v. United States,

505 U.S. 647, 652 n.1 (1992); United States v. Walker, 92 F.3d 714, 717 (8th Cir.

1996) (finding thirty-seven month delay presumptively prejudicial); cf. United States

v. Patterson, 140 F.3d 767, 772 (8th Cir. 1998) (finding five-month period between

detention and trial on drug charges, interrupted by pretrial motions, "was not

sufficiently long to be presumptively prejudicial"); United States v. McFarland, 116

F.3d 316, 318 (8th Cir. 1997) (holding delay just over seven months did not trigger

Sixth Amendment analysis). Where no presumptively prejudicial delay exists we

need not examine the remaining three factors under Barker. Doggett, 505 U.S. at

651-52; Sprouts, 282 F.3d at 1043.

We assume Jeanetta has shown presumptive prejudice resulting from the

fifteen-month delay and consider the additional Barker factors. Under the second

factor, we note the reason for nearly eight months of the delay was Jeanetta's flight

from prosecution. If Jeanetta had remained available the delay in prosecuting him
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would have been less than eight months – well within the limits suggested by the

Supreme Court. Thus, this factor weighs heavily in favor of finding no Sixth

Amendment violation. As to the third factor, there is no dispute Jeanetta timely

asserted his speedy trial rights. Finally, as to the fourth factor, Jeanetta argues the

delay prejudiced his defense because it allowed the government to file a superceding

indictment adding the weapons charges and locate additional witnesses. The weapons

charge, however, resulted directly from Jeanetta's flight to avoid prosecution. Further,

even assuming such matters qualify as "prejudice" in this context, Jeanetta offers no

specifics to support his claim the government's witnesses would not have been

similarly available had the trial occurred earlier. Finally, Jeanetta points to no change

of circumstance making it more difficult for him to marshal a defense to the charges,

i.e., disappearance of witnesses or evidence. Thus, there was no unreasonable delay,

no prejudice, and no Sixth Amendment violation.

D. Expert Testimony

Jeanetta's final argument is the district court abused its discretion when it

allowed expert testimony from a police officer explaining the significance of various

items seized during the search of his home. For example, the officer testified the

Ziploc bags found were commonly used by drug dealers to repackage drugs, and were

popular because they were easy to use, resealable, and allowed the drugs to be viewed.

He also testified it was common for drug dealers to use radios, scanners, cameras,

monitors, and night vision goggles to monitor the activities of law enforcement. The

officer further testified it was common for drug dealers to maintain large quantities

of cash on hand for drug-related transactions. According to Jeanetta, this testimony

fell outside the bounds allowable under Fed. R. Evid. 702. Additionally, Jeanetta

argued he was a drug user, not a drug dealer, and the officer's testimony was unfairly

prejudicial under Fed. R. Evid. 403.
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We review the district court's decision to allow expert testimony under an abuse

of discretion standard. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); United

States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997).

Federal Rule of Evidence 702 permits a district court to allow the testimony of

a witness whose knowledge, skill, training, experience or education will assist a trier

of fact in understanding an area involving specialized subject matter. See Fed. R.

Evid. 702. Such a witness is regarded as an expert under the rule. Id. "A district

court has discretion to allow law enforcement officials to testify as experts concerning

the modus operandi of drug dealers in areas concerning activities which are not

something with which most jurors are familiar." Brown, 110 F.3d at 610 (citations

omitted). In deciding whether to permit expert testimony, a district court still must

balance the probative value of the testimony versus its possible prejudicial effects.

See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993); see also Kumho

Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999) (holding Daubert applies not only

to scientific testimony but to all expert testimony).

The significance of seemingly innocuous household items, e.g., Ziploc bags and

scales, along with the presence of sophisticated surveillance equipment, including

scanners, cameras, monitors, and night vision goggles, combined with the presence

of large amounts of cash, was highly relevant to Jeanetta's claim he was merely a drug

user and not a trafficker. Because the importance of the items would not necessarily

be apparent to a lay observer, the expert testimony was necessary to explain the

significance of the items as they related to the world of drug dealing.

Further, the fact the evidence was prejudicial to Jeanetta's defense does not

mean it constituted unfair prejudice. It is the job of government prosecutors to present

evidence prejudicial to the defendant; they are simply not allowed to present evidence

which unfairly prejudices the defendant. Here the evidence directly refuted Jeanetta's

defense. We conclude the district court properly balanced the probative value of the
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evidence against its prejudicial effect and correctly concluded it fell within the

parameters of Rule 702.

III

The judgment of the district court is affirmed.

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