United States v. Skarda

845 F.3d 370

UNITED STATES of America, Plaintiff–Appellee

v.Randy Scott SKARDA, Defendant–Appellant

No. 15-3889

United States Court of Appeals, Eighth Circuit.

Submitted: November 14, 2016

Filed: December 22, 2016

Counsel who presented argument on behalf of the appellant and appeared on the brief was Kevin Joseph Chapman, of Williston, ND.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Rick Lee Volk, AUSA, of Bismarck, ND.

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.

BEAM, Circuit Judge.

Randy Scott Skarda appeals his convictions for distribution of methamphetamine, conspiracy to distribute methamphetamine, distribution of cocaine, and possession of a firearm by a drug user, arguing that the district court¹ erred in denying his motion to suppress and his motion for a new trial. For the reasons discussed below, we affirm.

I. BACKGROUND

Lynn Starr was arrested at her home in Ryder, North Dakota, on October 7, 2013, for drug trafficking offenses. During a search of her home, police found marijuana, methamphetamine, scales, plastic bags, and a cell phone. FBI Special Agent Coulter interviewed Starr and reviewed the list of contacts in her cell phone. Starr identified Skarda, who was listed in her cell phone, as one of her long-time methamphetamine suppliers. She was unable to provide Skarda's address but gave a description of the property. She described Skarda's residence as a farmstead or homestead with multiple buildings, a large, metal quonset-type building next to the residence, and equipment on the property. The residence was a one bedroom metal structure with water and electricity. She also noted that the home was undergoing construction. Specifically, Skarda had poured a foundation, built walls, and was beginning to insulate the walls and complete woodwork. Starr acknowledged that the property was possibly Skarda's parents' homestead.

Based on Starr's testimony, Coulter applied for a search warrant for property in Keene, North Dakota, associated with Skarda. The warrant application listed the premises as "10952 32nd Street Northwest, Keene, North Dakota" (the 10952 address). The physical address came from North Dakota Department of Transportation records, which listed the 10952 address as Skarda's residence. The affidavit accompanying the application also contained testimony from a confidential source (CS–5), who stated that he or she purchased methamphetamine from both Skarda and Starr. CS–5 purchased methamphetamine from Skarda at Skarda's home, where he kept the methamphetamine in a quonset on his property. Magistrate Judge Klein signed the search warrant for the 10952 address at 4:15 p.m. on October 7, 2013.

Before executing the warrant, police officers gathered to brief the operation. McKenzie County Deputy Sheriff Johansen, who lived near Skarda's residence and knew the area, noticed that the address on the search warrant was not Skarda's residence and notified Coulter. Johansen then contacted the McKenzie County dispatch and retrieved the correct address for Skarda, which was 10841 28th Street Northwest, Keene, North Dakota (the 10841 address). Johansen and FBI Special Agent Bennett then went to the 10841 address to ensure the property matched Starr's description. Bennett identified a metal structure, equipment on the property, and a residence under construction. Bureau of Indian Affairs Special Agent White viewed the 10841 address on Google Earth, noting a residence under construction and a quonset, which also confirmed that Starr's testimony was describing the 10841 address. Following this verification, at 6:02 p.m. on October 7, 2013, Coulter called the law clerk for another magistrate judge who was able to connect him to Magistrate Judge Klein at approximately 6:16 p.m. After Magistrate Judge Klein placed Coulter under oath, Coulter explained that the address on the search warrant was incorrect and told her that the correct address was 10841 28th Street Northwest. He explained that the 10952 address came from public records that he mistakenly believed to be correct when he submitted the warrant application. However, local police officers familiar with Keene noticed the mistake. Magistrate Judge Klein instructed Coulter to write in the correct address and initial the changes.

Police officers executed the search warrant at the 10841 address at 6:58 p.m. on October 7, 2013. They found drugs, drug-related items, cash, and firearms. In the quonset they found a firearm, ammunition, 138 grams of marijuana, small amounts of cocaine and methamphetamine, a glass smoking device, hypodermic needles and syringes, and plastic bags. In the house they found numerous firearms, $85,000 in cash, and a red bag containing methamphetamine and a glass smoking device that belonged to Skarda's girlfriend, Tana Boots. While the search was ongoing, Skarda and Boots arrived at the residence. Shots were fired, and Skarda was injured. Law enforcement then searched Skarda's vehicle and found a firearm, approximately $21,000 in cash, and Boots' cellular phone. A copy of the search warrant with Coulter's handwritten and initialed changes was left at the residence.

On October 10, 2013, Magistrate Judge Klein issued a supplemental search warrant reciting the events that occurred on October 7 regarding the incorrect address and handwritten changes on the search warrant. However, she inadvertently stated that the change request was made on October 8. On October 25, 2013, the government filed a Rule 36 motion to correct the supplemental search warrant so that it correctly noted the date Coulter requested the change. Magistrate Judge Klein granted the motion. On March 27, 2014, Skarda was charged with distribution of methamphetamine, conspiracy to distribute methamphetamine, distribution of cocaine, possession of a short-barreled rifle, and possession of a firearm by a drug user. Prior to trial, Skarda filed a motion to suppress, arguing that the search of his property on October 7, 2013, was illegal because the warrant was not supported by probable cause. Skarda also objected to Magistrate Judge Klein's failure to record the telephone conversation with Coulter, arguing that it violated Rules 41 and 4.1 of the Federal Rules of Criminal Procedure. The district court denied the motion holding that "the premises to be searched were described with sufficient particularity and adequate probable cause existed to support the issuance of the search warrant." The district court further held that although Magistrate Judge Klein violated Rule 41, suppression was not the appropriate remedy. Finally, the district court held that "even if probable cause did not exist to issue the warrant in this case, the ‘good faith exception’ to the exclusionary rule ... would save the evidence seized from being suppressed."

At trial, Starr testified that she had been purchasing methamphetamine weekly from Skarda for nine to ten months prior to her arrest. Several purchases occurred at Skarda's home, and the three ounces of methamphetamine found when she was arrested in October 2013 came from Skarda. Shelly Suelzle, who was arrested in October 2013 for possession of methamphetamine, cocaine, and marijuana, testified that she obtained methamphetamine and cocaine from Skarda at her home in North Dakota. Frank Black testified that he purchased methamphetamine from Skarda at Skarda's residence from 2012 to 2014. He also stated that a week before trial, while gambling at a casino in North Dakota, Skarda sat down next to him, cursed at him, and told him that he should have kept his "F'ing mouth shut." As Black was leaving the casino, Skarda remarked, "You better go home." The district court allowed Black's testimony regarding the casino encounter as evidence of conscious guilt, despite Skarda's objection. Starr's sons, Anthony and Blue Sky Starr, also participated in the distribution of methamphetamine. Blue Sky went with Starr to meet Skarda at Skarda's residence on at least two occasions. Thus, Blue Sky was able to identify Skarda's residence from photographs admitted at trial.

The jury found Skarda guilty of all counts except possession of a short-barreled rifle. Skarda then filed a motion for judgment of acquittal or new trial on the basis that the district court erred by admitting Black's testimony about the casino encounter. The motion was denied, and Skarda was sentenced to 120 months for each count, with the sentences running concurrently. Skarda now appeals, arguing that the district court erred in denying his motion to suppress because (1) changing the address on the search warrant violated Rule 41 and Rule 4.1 of the Federal Rules of Criminal Procedure ; (2) the warrant was not based on any particularized probable cause; and (3) the good faith exception did not save the illegal search. Skarda also argues that the district court erred in denying his motion for a new trial because allowing Black's testimony was an abuse of discretion.

II. DISCUSSION

A. Motion to Suppress

"When reviewing a district court's denial of a suppression motion, we review for clear error the district court's factual findings and review de novo whether the Fourth Amendment was violated." United States v. Welch, 811 F.3d 275, 279 (8th Cir.) (quoting United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007) ), cert. denied, ––– U.S. ––––, 136 S.Ct. 2476, 195 L.Ed.2d 811 (2016).

1. Rule 41 and Rule 4.1 of the Federal Rules of Criminal Procedure

Skarda argues that changing the address on the search warrant violated Rule 41 and Rule 4.1 of the Federal Rules of Criminal Procedure and further invalidated the search warrant. Rule 41(d)(3) states, "In accordance with Rule 4.1, a magistrate judge may issue a warrant based on information communicated by telephone or other reliable electronic means." Rule 4.1(b) lists the procedures for issuing a warrant by telephone or other electronic means. "The judge must place under oath—and may examine—the applicant and any...