Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2268

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN BARNES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,

Tashima, Senior Circuit Judge. *

Jeffrey M. Brandt, with whom Robinson & Brandt, P.S.C. was on

brief, for appellant.

Mary E. Rogers, Assistant United States Attorney, with whom

Robert Clark Corrente,United States Attorney, and Donald C.

Lockhart, Assistant United States Attorney, were on brief, for

appellee.

June 27, 2007
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TASHIMA, Senior Circuit Judge, John Barnes challenges

his conviction and the sentence imposed following a jury trial on

two drug counts. Barnes contends that the district court erred in

concluding that the affidavit submitted in support of a search

warrant demonstrated probable cause. He also argues that the

evidence is insufficient to sustain his conviction. His final

contention is that the district court erred by relying on a prior

conviction not proven to the jury beyond a reasonable doubt in

imposing his sentence. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), and we affirm.

I. BACKGROUND

In January 2005, Providence, Rhode Island, police officer

Nicholas Ludovici began surveillance of a residence at 91 Whatcheer

Avenue (the “Whatcheer residence”) in Providence, where he saw

Barnes leave the home and enter a car parked in the driveway. In

April 2005, Detective Albert Faella of the Johnston, Rhode Island,

Police Department received information concerning Barnes from a

confidential informant (“CI”) who had proven reliable in the past.

The CI told Faella that Barnes was selling crack cocaine in

Johnston, described Barnes’ car, that Barnes lived at the Whatcheer

residence, and that the CI had been in the residence many times.

Faella then began conducting surveillance of the Whatcheer

residence with Alan Ross, another Johnston police officer.
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Ross saw Barnes in the yard of the residence on two

occasions in May 2005, and Faella saw him outside the residence on

two different occasions in April and May.

On May 5, 2005, the CI told Faella that Barnes was going

to 995 Atwood Avenue in Johnston to deliver crack cocaine to a

white female at that address, and that Barnes would be driving a

white Cadillac Escalade. Faella contacted Ross, who went to the

address given by the CI and observed the transaction. After Barnes

left, Ross spoke with the woman, who admitted that she had

purchased $100 worth of crack cocaine from Barnes. She gave the

substance to Ross, and it later tested positive for cocaine. 

On May 13, 2005, the CI again contacted Faella to tell

him that Barnes was going to make another delivery to 995 Atwood.

Faella and Ross went to the Whatcheer residence, where they

observed the Cadillac leave the house and followed it to 995

Atwood. After the sale, Faella, Ross, and Johnston police officer

Christopher Correia stopped Barnes and arrested him. A white

substance, later determined to be cocaine base, was found in the

Cadillac when it was searched.

Faella prepared an affidavit in support of an application

for a search warrant for the Whatcheer residence. Faella included

in the affidavit the preceding facts, as well as a statement that,

on May 12, 2005, the CI told Faella that the CI observed a large
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quantity of crack cocaine in a coffee can inside the Whatcheer

residence.

The search warrant was executed on May 13, 2005. During

the search of the residence, the officers found large quantities,

consistent with distribution, of crack and powder cocaine.

Officers also found a photo of Barnes, two Macy’s invoices

addressed to John Barnes at the Whatcheer residence, a cable

television bill similarly addressed to Barnes, a credit card

receipt in Barnes’ name, and a Sears sales receipt also with

Barnes’ name.

Barnes was indicted on one count of possession with

intent to distribute 50 grams or more of cocaine base and one count

of possession with intent to distribute an unspecified amount of

cocaine. Prior to trial, Barnes requested a hearing pursuant to

Franks v. Delaware, 438 U.S. 154 (1978). Barnes challenged the

truthfulness of the sentence in the search warrant affidavit in

which Faella stated that the CI told him that the CI observed a

large quantity of crack cocaine in a coffee can at the Whatcheer

residence. The district court denied Barnes’ request for a Franks

hearing, concluding that even if the contested sentence were

excluded from the affidavit, the remainder of the affidavit still

sufficiently demonstrated probable cause that evidence of drug
The district court did not rule on the first prong of the 1

Franks test: whether Barnes made “a substantial preliminary showing

that a false statement knowingly and intentionally, or with

reckless disregard for the truth, was included by the affiant in

the warrant affidavit.” Franks, 438 U.S. at 155-56. Instead, the

district court based its denial of an evidentiary hearing only on

the second prong of the Franks test, which requires that “the

allegedly false statement is necessary to the finding of probable

cause” in order for a hearing to be granted. Id.

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trafficking would be found at the Whatcheer residence. After an 1

initial jury trial resulted in a mistrial, a second jury trial

returned guilty verdicts on both counts. The district court then

sentenced Barnes to the statutory minimum term of 240 months’

imprisonment.

A. Franks’ Hearing

Barnes contends that the search warrant for the Whatcheer

residence was not supported by probable cause and that the district

court erred in its denial of an evidentiary hearing to challenge

the affidavit supporting the warrant. 

A defendant is entitled to an evidentiary hearing under

Franks where the defendant “makes a substantial preliminary

showing” that both (1) “a false statement knowingly and

intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit” and (2) “the

allegedly false statement is necessary to the finding of probable

cause.” Franks, 438 U.S. at 155-56. An affidavit demonstrates

probable cause to search a locale "where information in the

affidavit reveals 'a fair probability that contraband or evidence
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of a crime will be found in a particular place.'" United States v.

Syphers, 426 F.3d 461, 464 (1st Cir. 2005) (quoting United States

v. Baldyga, 233 F.3d 674, 683 (1st Cir. 2000)), cert. denied, 126

S. Ct. 2312 (2006). Thus, we review the search warrant affidavit,

without the contested sentence, to determine whether it

demonstrated a fair probability of contraband being found at the

Whatcheer residence.

We review the district court’s denial of a Franks hearing

for clear error. United States v. Materas, 483 F.3d 27, 31 (1st

Cir. 2007). The “district court’s ruling is clearly erroneous only

if ‘the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.’”

United States v. Castillo, 287 F.3d 21, 25 (1st Cir. 2002) (quoting

Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)). Thus, in

order to prevail, Barnes must make “a substantial preliminary

showing” that, but for the challenged paragraph of Detective

Faella’s affidavit, the remaining portion would not demonstrate

probable cause, Franks, 438 U.S. at 155-56, and that the district

court’s denial of his motion was clearly erroneous. 

Barnes argues, first, that the CI was unreliable because

the CI predicted that on May 5, 2005, Barnes would drive his

Escalade to 995 Atwood to sell crack cocaine to a white female,

whereas the substance subsequently recovered by officers tested

positive for powder cocaine, not crack cocaine. Barnes argues that
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because the substance tested positive for powder cocaine, rather

than crack cocaine, this renders the CI unreliable. However, there

is ample additional evidence to support the credibility of the CI,

whom the affidavit indicated was “reliable” and had supplied

information that led to “numerous” arrests in the past. Indeed,

every other aspect of the monitored drug deal occurred as the CI

predicted; therefore, Barnes’ argument that the CI incorrectly

predicted the type of cocaine being sold by Barnes is insufficient

to carry the day.

Second, Barnes makes a nexus claim: that there was no

probable cause that evidence of Barnes’ drug dealing would be found

at the Whatcheer residence. Barnes notes that officers only

monitored drug sales from his Cadillac Escalade, not the Whatcheer

residence, and that Barnes’ car is registered at a different

address from the Whatcheer residence. Barnes further argues that

police only saw him “leave” the Whatcheer residence, rather than

actively occupy the home. This court has repeatedly found,

however, that when a defendant sells drugs outside his home, it is

reasonable to conclude that there is evidence of his drug dealing

activity in the home, particularly when the defendant is observed

leaving the home immediately prior to selling drugs. See, e.g.,

United States v. Dessesaure, 429 F.3d 359, 368-69 (1st Cir. 2005)

(noting that when the defendant sold drugs to a person from his

car, the defendant “had just come from his apartment, making it
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likely that the drugs he sold . . . came from the apartment”);

United States v. Feliz, 182 F.3d 82, 86-88 (1st Cir. 1999) (holding

that where police only observed a defendant selling drugs out of

his car, there is still probable cause to search his home, because

his home was “a likely place to seek to find incriminating items”);

accord United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.

1986) (noting that "in the case of drug dealers, evidence is likely

to be found where the dealers live"). 

Thus, to determine the sufficiency of the affidavit,

excluding the contested sentence, we look to “whether the ‘totality

of the circumstances’ stated in the affidavit demonstrates probable

cause to search either the premises or the person.” United States

v. Khounsavanh, 113 F.3d 279, 283 (1st Cir. 1997) (quoting Illinois

v. Gates, 462 U.S. 213, 238 (1983)). Here, given both that the CI

stated that Barnes lived at the Whatcheer residence and that the

police observed Barnes exit the Whatcheer residence, drive away,

and sell drugs on the day of his arrest and the search, the

totality of the circumstances strongly suggested that there was

evidence of drug dealing at the Whatcheer residence.

Finally, Barnes argues that Faella’s affidavit, without

the contested sentence, makes a claim that is impossible,

undermining a finding of probable cause. Barnes notes that on the

day of his arrest, the CI told Faella that Barnes was “on his way”

to 995 Atwood in Johnston, from the Whatcheer residence in
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Providence, to sell drugs. Barnes argues that if he were “on his

way” to Johnston, it is impossible that Faella himself responded

from Johnston to the Whatcheer residence, a seven-minute drive from

Johnston, in time to observe Barnes depart, as Faella affirms in

the affidavit. However, “the law tells us that we are to read

descriptions in warrants (and in their supporting documents), not

‘hypertechnically,’ but in a ‘commonsense’ fashion.” United States

v. Gendron, 18 F.3d 955, 966 (1st Cir. 1994). Here, Barnes’

reading of the search warrant affidavit amounts to a hypertechnical

parsing of the phrase “on his way,” where a more commonsense

reading of the phrase is that Barnes was about to leave, although

not yet in transit. 

Thus, the supporting affidavit, even without the

contested sentence, demonstrated that there was a fair probability

that evidence of drug dealing would be found at the Whatcheer

residence, because Barnes had been seen exiting that residence en

route to deliver drugs and because a reliable CI stated that Barnes

sold drugs and lived at the Whatcheer residence. The single

contested sentence does not undermine this conclusion. Therefore,

the district court properly denied Barnes’ motion for a Franks

hearing. 
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B. Sufficiency of the Evidence

Barnes also argues that there is insufficient evidence to

support the verdict. Ordinarily, a sufficiency of the evidence

challenge requires us to review 

whether after viewing the evidence in the

light most favorable to the prosecution, any

rational trier of fact could have found the

essential elements of the crime beyond a

reasonable doubt. All reasonable evidentiary

inferences are to be drawn in harmony with the

[jury's] verdict, and all issues of

credibility are to be resolved in the light

most favorable to the government.

United States v. Rodriguez-Ortiz, 455 F.3d 18, 22 (1st Cir. 2006)

(alteration in original) (internal citations and quotation marks

omitted), cert. denied, 127 S. Ct. 1010 (2007). Barnes, however,

failed to move for judgment of acquittal at the close of the

government’s case, after the defense case, or following the

verdict, pursuant to Federal Rule of Criminal Procedure 29. As

such, our review of this un-preserved sufficiency claim is subject

to a more limited review – for “clear and gross injustice.” United

States v. Maldonado-Garcia, 446 F.3d 227, 230-31 (1st Cir. 2006).

Because Barnes’ un-preserved sufficiency challenge fails to meet

even the more lenient standard for a preserved challenge, it

necessarily also fails to meet the “clear and gross injustice”

standard. See United States v. Gobbi, 471 F.3d 302, 308-309 (1st

Cir. 2006).
Police also found: a photo of Barnes, two Macy's invoices 2

addressed to John Barnes at 91 Whatcheer, a credit card receipt in

Barnes' name, and a Sears sales receipt with Barnes' name.

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The core of Barnes’ argument is that there was

insufficient evidence to prove that he actually or constructively

possessed the drugs found at the Whatcheer residence. Extensive

evidence, however, links Barnes to the Whatcheer residence. First,

Barnes was twice observed by police at the Whatcheer residence,

once leaving the side door in January 2005, and again on April 27,

2005. Second, Barnes was observed exiting the Whatcheer residence

on May 13, 2005 – the day of the search – to enter his car, in

which officers subsequently discovered crack cocaine. Third,

Barnes himself told Faella upon his arrest that he was coming from

his house at 91 Whatcheer. Fourth, when officers conducted the

search of the Whatcheer residence later that day, no one else was

present in the single-family home, and documents found in the

residence tied Barnes to the home, including a cable television

bill addressed to Barnes at the Whatcheer residence. Finally, 2

subsequent investigation confirmed that the cable service at the

Whatcheer residence had been in Barnes’ name for the past four

years. 

Taken together, all of this evidence easily gives rise to

the reasonable inference that Barnes resided at the Whatcheer

residence, and possessed the drugs found there. In response,

Barnes mounts a credibility attack and suggests further
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investigative steps officers might have taken to prove that Barnes

resided at the Whatcheer residence. When evaluating a sufficiency

claim, however, “we may neither evaluate the credibility of the

witnesses nor weigh the relative merit of theories of innocence

postulated by the defendant.” Maldonado-Garcia, 446 F.3d at 231.

Thus, given Barnes’ own admission that he lived at the Whatcheer

residence, the multiple observations by police of Barnes at that

address, and the extensive documentary evidence found in the

residence linking Barnes to the residence, we conclude that any

rational trier of fact could have found beyond a reasonable doubt

that Barnes resided at the Whatcheer residence.

C. Sentencing Challenge

Barnes raises a constitutional challenge to the use of a

prior conviction not proven to the jury in determining his

sentence, relying on three recent Supreme Court decisions, Shepard

v. United States, 544 U.S. 13 (2005); United States v. Booker, 543

U.S. 220 (2005); and Blakely v. Washington, 542 U.S. 296 (2004).

This court, however, continues to interpret Almendarez-Torres v.

United States, 523 U.S. 224 (1998), as permitting a criminal

history exception. See United States v. Jimenez-Beltre, 440 F.3d

514, 520 (1st Cir. 2006)(en banc). This argument is, therefore,

unavailing.
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III. Conclusion 

For the foregoing reasons, the judgment of conviction and

the sentence are

AFFIRMED.