United States v. McCaney

Citation: 177 F. App'x 704Docket: No. 04-50578

Court: Court of Appeals for the Ninth Circuit; April 24, 2006; Federal Appellate Court

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Donald Craig McCaney appeals his life sentence stemming from a jury conviction for conspiracy and possession of a controlled substance with intent to distribute under the Controlled Substances Act. The appeal challenges the legality of evidence obtained via a search warrant, claiming it violated the Fourth Amendment. 

The court affirms the conviction, stating that a magistrate judge's finding of probable cause for the search warrant is reviewed for clear error. A canine sniff can establish probable cause if the dog's reliability is confirmed, and McCaney's argument that the canine's certification was insufficient is rejected. He did not challenge the dog's actual reliability, and the affidavit indicated the handler's presence during the search, fulfilling reliability requirements.

Additionally, regarding alleged misstatements in the affidavit, the court applies a de novo review standard. McCaney did not demonstrate that false statements were made intentionally or recklessly enough to warrant a Franks hearing. Even without the contested statements, the affidavit still established probable cause, primarily based on the canine sniff.

Finally, the court confirms the lawfulness of the search, stating that the probable cause for the search warrant concerning other boxes was not derived from an earlier unlawful search, thereby upholding the district court's findings.

Evidence obtained independently of a constitutional violation is not subject to suppression, as established in Nix v. Williams and Murray v. United States. In this case, search warrant affidavits were based entirely on information that the DEA possessed prior to the unlawful search of the Richburg package, which was not mentioned in the affidavits. 

Regarding witness availability, the district court's finding that Agent Jonathan Fairbanks was unavailable was not an abuse of discretion. The prosecution must demonstrate a good faith effort to secure a witness's presence at trial. The government attempted to locate Fairbanks before trial and found him at an army facility on the trial's start date, where his commanding officer refused to release him, despite a subpoena. McCaney did not prove bad faith on the government's part and argued only that the government should have issued a subpoena despite the officer's refusal. The district court found the government's efforts reasonable and in good faith.

Fairbanks's prior testimony from McCaney’s first trial was read to the jury, which was permissible under the Sixth Amendment's Confrontation Clause, as the prosecution established his unavailability and McCaney had previously cross-examined him.

The denial of McCaney's motion to dismiss on double jeopardy grounds was reviewed de novo, with underlying factual findings assessed for clear error. McCaney's rights were not violated when he was retried after requesting a mistrial, since the Double Jeopardy Clause does not prevent retrial if the mistrial was declared at the defendant's behest, unless the government intentionally provoked the mistrial. The district court found no intent to provoke by Agent Walker, who inadvertently mentioned an unrelated arrest warrant. This conclusion was well-supported by the record, leading to the affirmation of the district court’s decision.

McCaney challenges the district court's determination that the Controlled Substances Act (CSA) mandated a life sentence due to his two prior felony drug convictions. Under 21 U.S.C. 841(b)(1)(A), a person convicted of distributing 100 or more grams of PCP faces a life sentence if they have two prior felony drug convictions; one prior conviction results in a 20-year minimum sentence. The definition of a felony drug offense includes any offense punishable by over one year of imprisonment under state law. The district court confirmed that McCaney's 1981 conviction for simple possession of cocaine qualified as a felony drug offense. McCaney argues this conviction does not meet the definition, but the court concluded that the statute's wording allows for an offense to be classified as a felony based on potential punishment at the time of conviction, not current classifications. 

Regarding McCaney's constitutional argument, he asserts that prior convictions should be proven to a jury beyond a reasonable doubt, as per Apprendi and Booker. However, these cases exempt prior convictions from this requirement, affirming that such factors do not necessitate jury proof. McCaney's equal protection argument, based on the inclusion of state law in defining felony drug offenses, is also rejected, as disparate sentencing resulting from different state laws does not violate equal protection principles. The court's ruling is affirmed, and the search conducted on May 24, 2001, is deemed lawful since it was not dependent on the outcome of a prior search deemed proper. The disposition of this case is not for publication and cannot be cited in this circuit except as allowed by local rules.