NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 16

- 3393

________________ UNITED STATES OF AMERICA

v. GEORGE J. LAWRENCE, V , Appellant

________________ Appeal from the United S tates District Court for the Western District of Pennsylvania (D.C. C rim in al Action No. 3

- 13

- c r - 0 0 041

- 001 ) District Judge: Honorable Kim R. Gibson

________________ Submitted under Third Circuit LAR 34.1(a)

on Ma y 2 4 , 2017 Before: HARDIMAN, ROTH and FISHE R , Circuit Judges

(Opinion filed : September 6, 2017 )

________________ OPINION *

________________ RO TH , Circuit Judge

* This disposition is not an opinion of the full C ourt and pursuant to I.O. P. 5.7 does not constitute binding precedent.2

In early 2013, a few months after serving a five

- year sentence for selling crack cocaine, George J. Lawrenc e began selling again. Police officers conducted a series of controlled buys using confidential informants (CIs) and an undercover officer (UC). Based on information obtained, the officers asked for and received a search warrant for Lawrence’s house, whe re they found additional evidence of drug activities. The o fficers subsequently arrested Lawrence. In the ensuing proceedings, Lawrence moved to dismiss the indictment on the ground that law enforcement officers lied in testimony before the grand jury. He also moved for a hearing pursuant to Franks v. Delaware 1 on the basis that the affidavit of probable cause contained false statements without which the warrant would not have been supported by probable cause. The District Court denied both motions, a nd Lawrence appeals their denial. 2 We will affirm. 3
I . Motion to Dismiss the Indictment Dismissal of an indictment can be proper when there has been prosecutorial misconduct before the grand jury. 4 Lawrence alleges that there was such prosecutorial misc onduct here because one of the law enforcement officers who investigated Lawrence misled the grand jury about law enforcement’s observations of the controlled buy on

1 438 U.S. 154 (1978). 2 The District Court had jurisdiction under 1 8 U.S.C. § 3231 , and we have jurisdiction under 28 U.S.C. § 1291

. 3 Lawrence also moved to suppress the evidence obtained from the search beca use the search was conducted pursuant to an improperly issued search warrant . However, because we hold that the warrant was properly issued , we need not separately address suppression. 4 See United States v. Soberon , 929 F.2d 935, 939 (3d Cir. 1991)

.3

April 16, 2013, which took place at the home of Paulette M. Alt. I n describing the incide nt, the a gent said that Lawrence and Alt came into the kitchen where the UC and CI were waiting. The agent also described Lawrence giving Alt crack cocaine, which Alt then gave to the UC . However, the a gent failed to mention that Lawrence and Alt left th e kitchen before Lawrence handed Alt the crack cocaine ; Alt then came back to the kitchen to give the crack cocaine to the UC

. 5 This omission may have led the grand jury to believe that the UC or the CI personally witnessed Lawrence give crack cocaine to Alt.
Even , however, if we assum e that this omission was misleading, it is not sufficient to dismiss the indictment. A court may not dismiss an indictment unless the alleged prosecutorial misconduct was prejudicial, that is, unless “ the violation substant ially influenced the g rand jury’s decision to indict, or there is grave doubt that the decision to indict was free from the substantial influence of such violations.” 6 Whether t here was misconduct and whether the misconduct was prejudicial are factual fin ding s , 7 so we review for clear error. 8 The District Court found that no prosecutorial conduct here was

5 Th e UC , Norman Young, wrote in his surveillance report: ALT makes contact with “G” [ i.e. , Lawrence]. “G” then wants to meet the money man. UC Young is asked by “G” if h e is a cop. UC indicates NO.

. . . ALT then walks back with “G” to front of house. Ap proximately 1 minute later target “ALT” gives Young 12 bags of crack cocaine. App. 202; see also App. 210

- 11. 6 Soberon , 929 F.2d at 939

- 40 (quoting Bank of Nova Scotia v. United States , 487 U.S. 250, 256 (1988) ) (internal quotation marks and ellipsis omit ted). 7 Id. at 939. 8 “ We ‘apply a mixed standard of review to a district court’s decision on a motion to dismiss an indictment, exercising plenary review over legal conclusions and clear error review over factual findings. ’ ” United States v. Small , 793 F .3d 350, 352 (3d Cir. 2015) (quoting United States v. Stock , 728 F.3d 287, 291 (3d Cir. 2013)).4

prejudicial, 9 and we do not think there has been clear error. This detail was not significant; although the undercover officer and confidential informa nt did not see Lawrence hand Alt the crack cocaine, they had good reasons to believe that Lawrence had done so. This was the third controlled buy from Lawrence , and Lawrence had used an intermediary in each previous controlled buy. Alt had taken the mone y for the purchase but had explained that she was waiting for “her man” before she could complete the transaction. When Lawrence showed up, he met briefly with Alt before Alt handed the crack cocaine to the undercover officer. Thus, at worst, the a gent d escribed a reasonable inference based on what was actually observed

. Moreover, there was considerable additional evidence supporting a decision to indict

. In these circumstances, we do not think that the District Court clearly erred by not harboring grav e doubt s regarding whether the grand jury would have indicted if the a gent had been more precise in his description of events

. Lawrence also argues that the a gent’s testimony before the grand jury regarding Lawrence’s prior criminal history , while accurat e, was irrelevant and prejudicial. However, the grand jury is not constrained by the ordinary rules of evidence. 10 Hence, while irrelevant and prejudicial testimony about a defendant’s criminal history might be excluded at trial, 11 it need not be excluded in a grand jury proceeding. Thus , we will not
dismiss the indictment on this basis.

9 App. 50

- 51. 10 See Fed. R. Evid. 1101(d)(2)

. 11 See Fed. R. Evid. 404(b).5 II. Motion for a Franks Hearing 12
Lawrence contends that the affidavit of probable cause for the search warrant for Lawrence’s house also contains a misstatement. In desc ribing the third controlled buy, the affidavit said, “The UC officer witnessed LAWRENCE meet and supply the CRACK
for the deal to AL T. ” Lawrence thus moved for a Franks hearing where he could introduce evidence to demonstrate that affiant intentionally or recklessly made a false

statement in the affidavit . The Di strict Court denied his motion, and we agree with its decision. A mong other things, any such misstatements must be material in order for a Franks hearing to be r equired. That is, “i f, when mater ial that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. ” 13
Had the sentence that Lawrence challenges been corrected or even deleted from the affidavit, the affidavit would have contained copious details supporting probable cause, including the other information about the three controlled buys. Such a change would not have affected t he probable cause dete rmination

. Hence, the District Court did not err by denying the Franks hearing. Lawrence argue s that the affidavit was not supported by probable cause in any

event because there was n o nexus between Lawrence’s drug dealing and his home

. We disagree. Th e affidavit contained in formation about Lawrence’s drug

- trafficking

12 W e have not yet fully articulated a standard of review for denial of a motion for a Franks hearing. See United States v. Pavulak , 700 F.3d 651, 665 (3d Cir. 2012)

. W e need not do s o here because Lawrence’s claim would fail under any standard , including de novo

. See id. at 666. 13 Franks v. Delaware , 438 U.S. 154, 171

- 72 (1978)

.6

activities , including the three controlled buys. It described interactions between Lawrence and his drug associates at or near the house

. It also noted that the business address of Lawre nce’s ostensibly legitimate construction business was Lawrence’s home
address , which increases the likelihood that laundered drug money or other evidence of unlawful activities might be found at the house

. The affiant, a detective with considerable experi ence in drug crimes, said that he believed that evidence was likely to be found at the house, a point which the magistrate could consider. 14 Based on these details and the others contained in the affidavit , the magistrate could have concluded there was a f

air probability that evidence of Lawrence’ s drug crimes w o uld be found at the house. 15
III. Conclusion For the foregoing reasons, we will affirm the judgment of the District Court.

14 See United States v. Stearn , 597 F.3d 540, 5 59

- 60 (holding that, in determining whether there is a nexus, one factor is “the conclusions of experienced officers ‘regarding where evidence of a crime is likely to be found’”) (quoting United States v. Hodge , 246 F.3d 301, 307 (3d Cir. 2001) )

. 15 A “fair probability” is sufficient for a magistrate to issue a warrant

. See Illinois v. Gates , 462 U.S. 213, 238 (1983)

.