United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-3774
                                     ___________

United States of America,                 *
                                          *
      Plaintiff - Appellee,               *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Malik Al Mustafa El-Alamin,               *
also known as Eric Britten,               *
                                          *
      Defendant - Appellant.              *
                                     ___________

                               Submitted: October 14, 2008
                                  Filed: August 4, 2009
                                   ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                              ___________

JOHN R. GIBSON, Circuit Judge.

      Malik El-Alamin was convicted by a jury of possession with intent to distribute
cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). El-
Alamin was sentenced to a total of 262 months’ imprisonment and five years of
supervised release. On appeal, he alleges that the district court1 erred in (1) failing to


      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota, in part adopting the Report and Recommendation of Susan
Richard Nelson, United States Magistrate Judge for the District of Minnesota.
dismiss the indictment based on violations of the Speedy Trial Act; (2) failing to
suppress evidence seized pursuant to an invalid search warrant; (3) refusing to permit
him to present a justification defense; (4) admitting evidence of his prior convictions;
(5) limiting cross-examination of an important adverse witness; (6) giving a jury
instruction on flight; (7) denying his motion for judgment as a matter of law; (8)
sentencing him as a career offender; and (9) imposing an unreasonable sentence. We
affirm El-Alamin’s conviction and sentence.

                                    I. Background

      On April 17, 2006, Officer Kurt Radke of the Minneapolis Police Department
applied to a Hennepin County judge for a warrant to search both the person of Malik
El-Alamin and his presumed residence located on 30th Avenue North in Minneapolis.
The warrant application was largely based upon information obtained from a
confidential informant and a controlled buy of narcotics that took place within the 72-
hour period preceding the application. The application also stated that El-Alamin had
several arrests in Minneapolis including an arrest for obstructing police and that he
was a “confirmed member of the Gangster Disciples street gang.” Based on this
information, a search warrant was issued.

       Later that same day, police established surveillance at the 30th Avenue North
residence in preparation for executing the warrant. After approximately twenty-five
minutes of observation, El-Alamin arrived at the residence in a vehicle. He then
exited the vehicle, along with a dog, and walked through a gated backyard into the
back porch area of the residence. Approximately five minutes later, El-Alamin and
the dog exited from the porch area and came out through the gated area. For the next
five minutes or so El-Alamin stayed near his vehicle while the dog paced up and down
the road. At this point, members of the police search team approached the residence
and announced their presence to El-Alamin. El-Alamin, who had been standing still,
saw the entry team approaching and began to run. He made it into the front yard of

                                          -2-
the house directly to the south before being apprehended. Officers then searched El-
Alamin and recovered a loaded nine millimeter handgun from his waistband area and
22.91 grams of cocaine base (“crack”) from his pocket. Police also recovered cash
totaling over five hundred dollars.

       On April 19, 2006, El-Alamin was charged by complaint with being a felon in
possession of a firearm in connection with the April 17th search. He entered his
appearance that same day, at which time he was appointed counsel and ultimately
detained. On June 13, 2006, the grand jury returned a two-count indictment. Count
I charged El-Alamin with possession with intent to distribute cocaine base, and Count
II repeated the firearm charge contained in the complaint. The district court ultimately
dismissed Count II without prejudice due to pre-indictment delay in violation of the
Speedy Trial Act, while allowing Count I to stand. On April 11, 2007, the
government sought and obtained a superceding indictment charging the same two
counts as in the original indictment. El-Alamin was eventually convicted by a jury
of both counts and this appeal follows.

                                 II. Speedy Trial Act

       El-Alamin advances two arguments concerning violations of the Speedy Trial
Act. First, he argues that the district court’s dismissal of the original indictment for
violation of the Speedy Trial Act should have been with prejudice and should have
included both counts. Second, he asserts that the time between his indictment and trial
exceeded the seventy days permissible under the Speedy Trial Act. “We review a
district court’s findings of fact concerning any negligent delay [under the Speedy Trial
Act] for clear error and its legal conclusions on that issue de novo.” United States v.
Contreras, 

, 793 (8th Cir. 2003). “A defendant has the burden of proof
to show that his statutory right to a speedy trial has been violated.” United States v.
Williams, 

, 950 (8th Cir. 2009).



                                          -3-
       The Speedy Trial Act requires that an indictment or information be filed against
the defendant within thirty days of arrest or summons. See 18 U.S.C. § 3161(b). If
the government fails to indict within the thirty-day period, the charge is subject to
dismissal. 

speedy trial violations can be made with or without
prejudice. See United States v. Richardson, 

, 957 (8th Cir. 2008), cert.
denied, 

(2009). In deciding whether a dismissal with prejudice is
proper, the court considers the following non-exhaustive factors: “the seriousness of
the offense; the facts and circumstances of the case which led to the dismissal; and the
impact of a re-prosecution on the administration of [speedy trial laws] and on the
administration of justice.” 

U.S.C. § 3162(a)(2)).

        Here, El-Alamin was charged by complaint with being a felon in possession of
a firearm on April 19, 2006, and he was arrested the same day. He was not indicted
until June 13, 2006, thus resulting in a technical violation of the Speedy Trial Act as
to that charge. El-Alamin moved to have the entire indictment dismissed based on this
violation. The district court concluded that the pre-indictment delay was due to desire
on the part of both parties to reach a plea agreement. The court found that the parties
had engaged in plea negotiations in both May and June, and that El-Alamin was
indicted on June 13, 2006 after the negotiations proved unsuccessful. The district
court further noted that El-Alamin’s counsel had filed a waiver of El-Alamin’s speedy
trial rights. Although El-Alamin disputes the validity of the waiver, its existence
weighs against the seriousness of the government’s error in failing to timely indict El-
Alamin. After concluding that the firearm charge contained in Count II of the
indictment was a sufficiently serious offense, the district court determined that
dismissal without prejudice was the appropriate remedy. The district court properly
considered the relevant factors and we find no error in its conclusion.

       El-Alamin also takes exception with the district court’s decision not to include
the drug charge in its dismissal for pre-indictment delay. The drug charge, however,
was not included in the complaint and therefore the speedy trial clock had not begun


                                          -4-
as to that charge. See 18 U.S.C. § 3162(a)(1) (requiring that if the indictment is not
filed within the requisite time period then “such charge against that individual
contained in such complaint shall be dismissed or otherwise dropped”) (emphasis
added). There was no pre-indictment violation of the Speedy Trial Act regarding
Count I of the indictment.

       Finally, El-Alamin asserts an additional violation of the Speedy Trial Act based
on post-indictment delay. In the case of post-indictment delay, the Speedy Trial Act
“requires that a federal criminal defendant be brought to trial within 70 days of the
filing of the indictment or of arraignment, whichever is later.” United States v.
DeGarmo, 

, 362 (8th Cir. 2006) (internal quotation marks omitted).
Certain events, however, toll the speedy trial clock and result in the exclusion of time
from the 70-day period. 

instance where the clock is tolled is during
“delay resulting from any pretrial motion, from the filing of the motion through the
conclusion of the hearing on, or other prompt disposition of, such motion,” 

previous version 18 U.S.C. § 3161(h)(1)(D)).

       In this case, the parties’ dispute concerns whether the district court was correct
in excluding two separate periods of time from its speedy trial calculation. First, El-
Alamin argues that the district court erred in excluding the time during that his pro se
motion to dismiss was pending. Second, he argues that the district court improperly
excluded time based on his attorney’s unauthorized filing of a speedy trial rights
waiver. After El-Alamin adds back in these two periods, he claims that a total of 95
days of non-excludable time elapsed prior to his trial.

       El-Alamin challenges the district court’s exclusion of time during the pendency
of his pro se motion to dismiss filed on October 4, 2006. The district court ultimately
denied the pro se motion on November 13, 2006, declining to entertain its merits
because El-Alamin was represented by counsel. El-Alamin argues that it was
improper for the district court to exclude time related to a motion it would ultimately


                                          -5-
refuse to rule on. The case law, however, clearly rejects this argument. In Williams,
we explained that “every motion filed by a defendant, whether or not it is frivolous
and whether or not he is represented at the time of filing, tolls the speedy trial 

. Thus, the district court was correct that the speedy trial clock was
tolled during the pendency of this motion. As the government now concedes,
however, the amount of time excludable in relation to this motion is limited to 30 days
because a hearing on the motion was not required nor was one afforded to El-Alamin.
See 18 U.S.C. §§ 3161(h)(1)(D) and (J). Nonetheless, after excluding the thirty days
attributable to this motion, even using El-Alamin’s remaining calculations, he was
brought to trial within the 70 days allowed under the Speedy Trial Act. Accordingly,
we need not reach the waiver issue. There was no post-indictment speedy trial
violation.

                                  III. Search Warrant

       El-Alamin argues that the district court erred in failing to suppress evidence
obtained during the search of his residence and person. He claims that the search
warrant was invalid because the affidavit offered in support of the warrant failed to
establish the required nexus between the alleged criminal activity and the residence
to be searched. In response, the government argues that the warrant was supported by
probable cause and that, even if we were to conclude otherwise, the Leon good-faith
exception should apply to allow admission of the evidence. See United States v.
Leon, 

(1984). “On appeal from the denial of a motion to suppress, we
review a district court's findings of fact for clear error,” and its legal conclusions-
including its probable cause determination-de novo. United States v. Grant, 

, 631 (8th Cir. 2007), cert. denied, 

(2008).

        An affidavit provides probable cause to issue a search warrant if it “sets forth
sufficient facts to lead a prudent person to believe that there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” 

quotation marks and citations omitted). Whether an affidavit establishes probable
cause is determined by the issuing judge based on the totality of the circumstances.

examine the sufficiency of a search-warrant affidavit using a
common sense and not a hypertechnical approach. 

(internal quotation
marks and citations omitted).

       Here, Officer Radke applied for a warrant to search El-Alamin’s presumed
residence. In support of the warrant, he submitted a sworn affidavit citing information
gleaned from a Confidential Reliable Informant (“CRI”). The affidavit contained the
following information concerning the CRI: (1) the CRI was familiar with an
individual by the same name as El-Alamin who sold cocaine in Minneapolis; (2) the
CRI confirmed that the individual he was referring to was El-Alamin by positively
identifying him in a photograph furnished by investigators; (3) the CRI told law
enforcement that he had a telephone number he used to contact El-Alamin in order to
purchase drugs; (4) the CRI, at the direction of law enforcement, contacted El-Alamin
at that same telephone number and arranged to purchase cocaine; (5) the CRI then
engaged in a controlled buy with El-Alamin; (6) after the controlled buy, surveillance
followed El-Alamin directly back to his residence where he was observed keying his
way into the back door; and (7) the CRI had purchased cocaine from within the
residence in the past. The affidavit also stated that El-Alamin was a confirmed
member of the Gangster Disciples street gang, had an extensive criminal history
including narcotics and weapons arrests, and had previously been arrested for
obstructing police.

       El-Alamin argues that this information was insufficient to establish the required
nexus between his residence and criminal activity. We disagree. The information
outlined above is sufficient to “lead a prudent person to believe that there is a fair
probability that contraband or evidence of a crime” would be found at El-Alamin’s
residence. See 

. The affidavit provided sufficient facts to
determine that the stated location was El-Alamin’s residence, that he went


                                          -7-
immediately to that residence following a controlled buy and, therefore, contraband
in the form of drug proceeds might be found there, and that such transactions had
occurred there in the past. El-Alamin also argues that information learned from the
CRI should only be given “slight” weight because the affidavit did not provide
information about the confidential informant’s reliability or criminal history. The
affidavit, however, provided indicia of the CRI’s reliability by explaining how the
CRI’s knowledge of El-Alamin’s telephone number was corroborated and led to a
successful controlled buy. The affidavit was sufficient to establish probable cause.

        However, even if we were to conclude that the affidavit was insufficient, the
Leon good-faith exception permits admission of the evidence. “Under the Leon
good-faith exception, disputed evidence will be admitted if it was objectively
reasonable for the officer executing a search warrant to have relied in good faith on
the judge’s determination that there was probable cause to issue the warrant.” 

(citing 

). Here, nothing in the record indicates
that it was not reasonable for Officer Radke to rely on the judge’s probable cause
determination. Accordingly, the evidence gained from the search was admissible
pursuant to the Leon good-faith exception.

       El-Alamin also argues that the district court erred in denying him a hearing,
under Franks v. Delaware, 

(1978), to challenge the search warrant. “We
review the denial of a Franks hearing for abuse of discretion.” United States v.
Kattaria, 

, 1177 (8th Cir. 2009) (per curiam) (en banc). A defendant is
entitled to a Franks hearing only after making a substantial preliminary showing that
“the probable cause determination relied on an affidavit containing false statements
or omissions made knowingly and intentionally or with reckless disregard for the
truth.” United States v. Snyder, 

, 816 (8th Cir.), cert. denied, 

(2008). “A mere allegation standing alone, without an offer of proof in the form
of a sworn affidavit of a witness or some other reliable corroboration, is insufficient



                                         -8-
to make the difficult preliminary showing.” United States v. Mathison, 

,
548 (8th Cir. 1998) (citing 

).

       On appeal El-Alamin alleges that the following three statements contained in
the warrant affidavit were false: (1) that the CRI purchased cocaine from inside his
residence in the past; (2) that he returned to his residence after the controlled buy; and
(3) that he is a confirmed member of the Gangster Disciples street gang. The district
court concluded that El-Alamin’s challenge of these statements was “self-serving” and
without any evidentiary support. We agree. El-Alamin did not come forward with a
sufficient offer of proof in support of his conclusory allegations. He also failed to
explain how Officer Radke’s use of the information was deliberate or reckless. In
particular, El-Alamin has not come forward with anything to indicate that Officer
Radke knew the information to be false or was unjustified in relying on it. Further,
the affidavit in support of the warrant would have been sufficient to establish probable
cause absent the challenged statements. Accordingly, El-Alamin failed to make the
difficult preliminary showing required for a Franks hearing. The district court did not
abuse its discretion.

                             IV. Pre-trial and Trial Issues

       El-Alamin argues that the district court erred by refusing to allow him to
present a defense of justification regarding the § 922(g) firearm charge. “We review
de novo a district court’s decision whether there is sufficient evidence to submit an
affirmative defense to a jury.” United States v. Hudson, 

, 933 (8th Cir.
2005). Thus far, “[t]his circuit has not recognized a defense of legal justification to
a violation of § 922(g).” 

such a defense is available in the context
of § 922(g), El-Alamin failed to present sufficient evidence to warrant a justification
instruction. To establish a defense of justification the defendant must demonstrate an
“underlying evidentiary foundation” as to each of the following elements:



                                           -9-
      1) he was under an unlawful and present, imminent, and impending
      threat of such a nature as to induce a well-grounded apprehension of
      death or serious bodily injury; 2) that he had not recklessly or
      negligently placed himself in a situation in which it was probable that he
      would be forced to commit a criminal act; 3) that he had no reasonable,
      legal alternative to violating the law; and 4) that a direct causal
      relationship may be reasonably anticipated between the commission of
      the criminal act and the avoidance of the threatened harm.

States v. Lomax, 

, 961 (8th Cir. 1996)).

       El-Alamin’s proffer concerning these elements was inadequate. He testified
that he had been the victim of prior violent incidents in and around his neighborhood
and that when he returned home on the day of his arrest to find the back door open,
he feared an intruder was inside. El-Alamin testified that he first grabbed a knife to
defend himself but then decided to get a gun because he feared for his life.

       Assuming that El-Alamin made an adequate showing as to the other elements,
he failed to demonstrate that he lacked a reasonable, legal alternative to violating the
law. “[I]f there was a reasonable, legal alternative to violating the law, a chance both
to refuse to do the criminal act and also to avoid the threatened harm, the third element
required for a justification instruction has not been satisfied.” 

(internal quotation marks and citations omitted). Here, El-Alamin noticed that
the door was open prior to entering the home. At that point, he could have refrained
from entering the residence and called the police. Once inside, El-Alamin did not
have to upgrade his weapon from a knife to a firearm. The district court did not err
in refusing to instruct the jury on a defense of justification.

        Next El-Alamin argues that the district court erred in allowing the government
to impeach him with his convictions for aggravated robbery and a drug crime. Before
trial, El-Alamin filed a motion in limine seeking to exclude any reference to his
previous convictions. After determining the type and date of the convictions, the

                                          -10-
district court ruled that El-Alamin’s 1998 aggravated robbery conviction and 1997
drug conviction were admissible for impeachment purposes under Federal Rule of
Evidence 609(a)(1). However it was El-Alamin, not the government, who first
introduced the convictions at trial. El-Alamin testified about the convictions during
his own direct examination. Only then did the government seek to impeach El-
Alamin’s testimony concerning the convictions. By choosing to preemptively
introduce the convictions, El-Alamin waived his right to appeal the trial court’s denial
of his motion in limine. See United States v. Walter, 

, 1009 (8th Cir.
2006) (“Because [the defendant] elected to address his prior conviction on direct
examination, he forfeited the right to relief on this issue.”) (citing Ohler v. United
States, 

, 760 (2000)). The district court did not err.

       El-Alamin also finds error with the district court’s decision not to order
disclosure of the contents of Officer Radke’s investigative file. The file contained
information concerning the controlled buy that allegedly took place between a
confidential informant and El-Alamin which was described in the search warrant
application. El-Alamin claims that the district court’s decision not to turn over the file
violated his Sixth Amendment confrontation rights. More specifically, he claims that
his cross-examination of Officer Radke was impermissibly limited because he could
not question him concerning information in the file without knowing what was in it.
We will only reverse the trial court’s decision to limit cross-examination upon a
showing of clear abuse of discretion and prejudice to the defendant. See United States
v. Brown, 

, 611 (8th Cir. 1997).

      “The right of confrontation ‘provides two types of protections for a criminal
defendant: the right physically to face those who testify against him, and the right to
conduct cross-examination.’” United States v. Isa, 

, 1306 (8th Cir.
1991) (quoting Pennsylvania v. Ritchie, 

, 51 (1987)). These rights are
“designed to prevent improper restrictions on the types of questions that defense
counsel may ask during cross-examination.” 

(emphasis in


                                          -11-
original). “The ability to question adverse witnesses, however, does not include the
power to require the pretrial disclosure of any and all information that might be useful
in contradicting unfavorable testimony.” 

Here, El-Alamin was not prevented
from cross-examining Officer Radke concerning the file’s existence or content.
Rather, El-Alamin claims, the effectiveness of his cross-examination was limited by
his lack of knowledge of the contents of the file. Given the district court’s in camera
examination of the file and conclusion that there was “nothing relevant in the file for
the defense,” we find no violation of El-Alamin’s right to confrontation. See 

(discussing protection provided by the district court’s in camera review
of material and finding no confrontation violation).

      El-Alamin next argues that the district court erred by giving a jury instruction
concerning his flight at the time of his arrest. We review a district court’s decision
whether to instruct the jury on flight for an abuse of discretion. United States v.
Webster, 

, 1067 (8th Cir. 2006). “A flight instruction may be given
when such an instruction is warranted by the evidence presented at trial.” 

government presented evidence that El-Alamin was standing still until he saw the
search team, at which time he began to run. El-Alamin, however, claims that he fled
because of concerns that his house had been broken into and “the chaos that ensued”
when the police attempted to apprehend him. “That [El-Alamin] may have had other
possible reasons for fleeing from police ‘does not render evidence of the flight
inadmissible to show consciousness of guilt’ of the crime charged.” 

States v. Roy, 

, 310 (8th Cir. 1998)). The flight instruction
correctly stated the law and was warranted by the evidence. The district court did not
err.

      Finally, El-Alamin argues that the district court erred in denying his motion for
judgment as a matter of law on the narcotics charge. He asserts that the government’s
evidence was insufficient to prove he intended to distribute the 22.91 grams of crack
found on his person. “[We] review the sufficiency of the evidence de novo, viewing


                                         -12-
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.”
United States v. Barker, 

, 687 (8th Cir. 2009) (internal quotation marks
and citations omitted). “[W]e will uphold the verdict if there is any interpretation of
the evidence that could lead a reasonable-minded jury to find the defendant guilty
beyond a reasonable doubt.” 

admitted possession of the crack cocaine at trial and only
disputes whether he possessed the requisite intent to distribute. The government
produced expert testimony that the amount of crack found, along with its packaging,
was consistent with distribution. The government also produced evidence that El-
Alamin was carrying several hundred dollars cash and a loaded nine millimeter
handgun. In addition, he was not found to be in possession of any type of
paraphernalia commonly used to ingest crack. Viewed in the light most favorable to
the verdict, the government produced sufficient evidence from which the jury could
conclude that El-Alamin possessed the crack with the intent to distribute it.

                                    V. Sentencing

       El-Alamin argues that the district court erred by sentencing him as a career
offender. We review the district court’s application of the United State’s Sentencing
Guidelines de novo. United States v. Brown, 

, 728 (8th Cir. 2008). A
defendant is regarded as being a career offender under § 4B1.1(a) of the Guidelines
if: “(1) the defendant was at least eighteen years of age at the time the felony was
committed, (2) the felony is either a crime of violence or controlled substance offense,
and (3) the defendant has two prior felony convictions for a crime of violence or
controlled substance offense.” United States v. Parks, 

, 797 (8th Cir.
2009) (per curiam) (internal quotation marks omitted). El-Alamin does not dispute
that the first two requirements are met. He does, however, take issue with the two
prior felonies relied upon by the district court in sentencing his as a career offender.



                                         -13-
       Specifically, El-Alamin argues that his 1998 state court convictions for two
counts of first degree aggravated robbery were obtained in violation of his Due
Process rights and therefore cannot support the finding that he is a career offender.
His Due Process argument centers around his claim that he was denied the
opportunity to speak at his sentencing hearing. In general, one cannot collaterally
attack a prior state conviction during a federal sentencing proceeding. See Custis v.
United States, 

(1994) (prohibiting collateral attack of prior state
convictions used to enhance a sentence under the armed career criminal provision of
the Guidelines); see also United States v. Moore, 

, 997 (8th Cir. 1999)
(applying Custis in the career offender context). Although certain exceptions do exist,
none of those exceptions apply here. E.g., 21 U.S.C. § 851 (provides that a defendant
may collaterally attack certain prior convictions). In addition, El-Alamin has
challenged his 1998 convictions in numerous state court proceedings and his claims
were found to be without merit. The district court did not err in sentencing El-Alamin
as a career offender.

       Lastly, El-Alamin appeals his sentence, arguing that the district court failed to
give appropriate weight to his mental health and family history. We review the
sentence for abuse of discretion. Gall v. United States, 

, 597 (2007).
First we ensure that the district court made no significant procedural error. 

court abuses its discretion if it fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors.” United States v. Starfield, 

, 676 (8th Cir.
2009) (internal quotations and citation omitted). If no significant procedural error is
found, we then consider the totality of the circumstances in determining if an abuse
of discretion occurred. 

. A sentence within the advisory
Guidelines range may be presumed reasonable on appeal. 

was sentenced to 262 months’ imprisonment, the low end of
his Guidelines range. A careful review of the record reveals that the district court
adequately considered and weighed all relevant factors. See 18 U.S.C. § 3553(a). The
                                           -14-
district court specifically discussed El-Alamin’s background and mental health and
concluded that, notwithstanding those issues, a 262-month sentence was appropriate
under the circumstances. The district court did not abuse its discretion in arriving at
this reasonable sentence. See United States v. Sigala, 

, 851 (8th Cir.
2008) (affirming sentence where “the court listened to [the defendant's] arguments,
but simply found the proffered circumstances insufficient to warrant a sentence lower
than the advisory sentence”).

                                   VI. Conclusion

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




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