GRUENDER, Circuit Judge.
Bobbie Keys was convicted by a jury of conspiracy to distribute 280 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He appeals the district court's
In the summer of 2009, detectives with the Lincoln, Nebraska police department were investigating the distribution of large quantities of cocaine and crack cocaine in Lincoln. A prospective cooperating source, Zachari Kilcoin, indicated during a proffer interview that an individual named Bobbie Keys, whom Kilcoin guessed to be twenty-five or twenty-six years of age, was a major source of the crack cocaine that was reaching Lincoln. Kilcoin claimed
The Lincoln detectives forwarded this information to detectives with the Kansas City police department. The Kansas City detectives identified a twenty-eight-year-old resident of Kansas City named Bobbie Keys and returned a photograph of him to the Lincoln detectives. At a follow-up interview, Kilcoin identified Keys's photograph from a stack of photographs presented by the Lincoln detectives. When asked to provide a further description of Keys's residence, Kilcoin stated that Keys drove a blue Pontiac Firebird and that his residence was identifiable by a stairwell leading from a porch to the driveway area.
The Lincoln detectives next interviewed Mitchell, whom Kilcoin had identified as accompanying him on several trips to Keys's residence. Mitchell, who became a second cooperating source, corroborated many of the details offered by Kilcoin regarding their trips to Kansas City to purchase crack cocaine. Mitchell described the location of the residence where the transactions occurred as near Quindaro Boulevard. Although Mitchell knew the seller at that residence only by the name "Chicken," he identified the photograph of Keys as "Chicken."
On October 20, 2009, the detectives arranged for Kilcoin to place a recorded telephone call to Keys. A portion of their conversation was as follows:
Kilcoin characterized this exchange to the detectives as Kilcoin informing Keys that he was attempting to get together sufficient funds to buy four ounces of crack cocaine, and Keys agreeing that Kilcoin could visit him and that Keys would be able to sell him four ounces of crack cocaine. Also on October 20, 2009, using a satellite and street view image database, Kilcoin was able to direct the detectives to the precise location of Keys's residence, which the detectives identified as 2701 North Early Street.
On November 11, 2009, Kansas City detectives confirmed that Keys listed the 2701 North Early address on his driver's license, had cited that address as his residence to police after an arrest earlier that summer, and was currently the primary account holder for utilities at that address. Surveillance revealed that Keys was present at the residence and that a blue Pontiac Firebird was parked in the driveway. That afternoon, Kilcoin placed another recorded telephone call to Keys, and a portion of that conversation was as follows:
Kilcoin placed a final recorded telephone call to Keys the next day, and a portion of that conversation was as follows:
After that call, Kansas City detective Eric Jones summarized the events above in an application to the Kansas state court in Wyandotte County for a search warrant for the 2701 North Early residence. In his affidavit in support, Jones described the recorded telephone calls as follows:
The search warrant issued, and detectives executed the search at 2701 North Early Street about ninety minutes after the final telephone call. The search uncovered a set of scales and a Pyrex measuring cup each coated with crack cocaine residue, plastic sandwich baggies with missing corners, a razor blade, and a bottle of Inositol. Apart from the residue, however, no crack cocaine was discovered.
Keys was charged with conspiracy to distribute 280 grams or more of crack cocaine. He moved to suppress the evidence obtained from the search warrant and requested a Franks hearing, alleging that the affidavit contained false statements because it characterized the recorded telephone calls as including the term "crack," yet the term "crack" never was expressly mentioned in any of the recorded telephone calls. The district court denied the motion without a hearing, and the case proceeded to a jury trial.
The Government's witnesses included Kilcoin, Mitchell, and several other individuals who testified that they occasionally accompanied one or both of Kilcoin and
At the close of the Government's evidence, Keys moved for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied the motion. As part of the defense's evidence, Keys testified that, although he made personal use of crack cocaine, he never distributed it. Keys also testified that the recorded telephone conversations were a discussion of a potential transaction between himself and Kilcoin involving a vehicle and four tire rims, rather than crack cocaine. At the close of evidence, Keys renewed his Rule 29 motion, which again was denied. The jury returned a verdict of guilty, and the district court sentenced Keys to 121 months' imprisonment. On appeal, Keys challenges the denial of his request for a Franks hearing and motion to suppress and the denial of his Rule 29 motion for acquittal. He also alleges that the introduction of "new" testimony by Evans, Schaaf, and Mitchell constitutes a Brady violation necessitating a new trial.
Keys contends that the search warrant was obtained through the use of false statements in the supporting affidavit and that the district court should have granted a hearing to investigate the issue under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Keys's argument turns on the use of the term "crack," in quotation marks, in the affidavit description of the recorded telephone calls. Because the transcripts of the calls indicate that the term "crack" was never audibly used in the conversations,
In this case, we need not resolve the dispute as to why the term "crack" was placed in quotation marks in the affidavit. We agree with the district court that, even absent the challenged references to "crack" and a "drug transaction" in the telephone call descriptions, the affidavit is sufficient to establish probable cause. "[T]he existence of probable cause depends on whether, in the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Rodriguez, 711 F.3d 928, 936 (8th Cir.2013) (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir.2005)). Where probable cause depends upon information supplied by an informant, "[t]he core question ... is whether the information is reliable." United States v. Williams, 10 F.3d 590, 593 (8th Cir.1993). "Information may be sufficiently reliable to support a probable cause finding if ... it is corroborated by independent evidence." Id. "If information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides, though uncorroborated, is also reliable." Id.
Here, according to the affidavit, two cooperating sources identified Keys as supplying crack cocaine to them on multiple occasions. The first source identified Keys by both name and photograph, the second source identified him by photograph, and both sources identified the neighborhood where the crack cocaine transactions occurred. Although neither source had a prior history of providing information to law enforcement, the receipt of consistent information from two separate sources is a form of corroboration. See, e.g., United States v. Jackson, 898 F.2d 79, 81 (8th Cir.1990) (holding that two anonymous "tips were mutually corroborative"). Moreover, detectives independently verified that a blue Pontiac Firebird was parked in the driveway and that Keys resided at 2701 North Early, as detailed by one of the sources. "[I]t is well established that even the corroboration of minor, innocent details can suffice to establish probable cause." Rodriguez, 711 F.3d at 936 (quoting Solomon, 432 F.3d at 828). Even after the references to "crack" and a "drug transaction" are excised from the affidavit's description of the recorded telephone calls, it would be more than reasonable to conclude that the "shit" discussed as the object of a new transaction in those calls was crack cocaine. Thus, given "the totality of the circumstances, there [was] a fair probability that contraband or evidence of a crime [would] be found" at 2701 North Early. Id. (quoting Solomon, 432 F.3d at 827).
Because Keys cannot "show that the alleged false statement ... was necessary to the finding of probable cause," Gabrio, 295 F.3d at 883, the district court did not abuse its discretion in denying the request for a Franks hearing and denying the motion to suppress.
In reviewing the denial of a Rule 29 motion for judgment of acquittal, "[w]e
Keys first contends that, because the evidence of his involvement is limited to his actions in Kansas City, Kansas, there is no evidence that he knowingly participated in a conspiracy to distribute crack cocaine in Nebraska, as alleged in the indictment. This argument is not well taken, as the indictment refers to a conspiracy "in the District of Nebraska and elsewhere" (emphasis added). Moreover, even if the indictment referred solely to Nebraska, where the investigation into the conspiracy began, Keys cites no authority for the proposition that every location in which the conspiracy operates must be listed in the indictment. Cf. United States v. Huggans, 650 F.3d 1210, 1218 (8th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1583, 182 L.Ed.2d 172 (2012) ("The indictment in this case limited the time frame of the alleged drug conspiracy ... and specified that the drug involved was cocaine.... `[I]n view of these limitations we cannot say that [the defendant] could have failed to realize exactly what conduct the trial concerned.'" (quoting United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir.1989), overruled on other grounds by United States v. Richardson, 439 F.3d 421 (8th Cir.2006))). To the extent that Keys was attempting to challenge venue through this argument, we note that he failed to object to venue in the district court, and in any event there is no question that Kilcoin and Mitchell acted in furtherance of the conspiracy in Nebraska. See United States v. Romero, 150 F.3d 821, 824 (8th Cir.1998) ("[A]lthough separate proof of an overt act is not a necessary element of a drug conspiracy under 21 U.S.C. § 846, venue is proper in a conspiracy case in any jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspirators." (citations and internal quotation marks omitted)). As a result, the Government needed to prove only that an agreement to distribute crack cocaine existed and that Keys knew of the agreement and knowingly participated in it, see Jiminez, 487 F.3d at 1146, regardless of where Keys's own actions occurred.
Keys next argues that the evidence was insufficient to establish these elements because Kilcoin, Mitchell, and other witnesses who hoped to benefit from cooperating with the Government had an incentive to testify falsely against him. Keys emphasizes that Kilcoin's testimony in particular was uncorroborated because the search of Keys's residence uncovered only crack cocaine residue, rather than the distribution-sized quantities described by Kilcoin. Nevertheless, "in reviewing a defendant's challenge to the sufficiency of the evidence, `[w]itness testimony ... does not need to be corroborated.'" United States v. Perez, 663 F.3d 387, 391 (8th Cir.2011) (alteration in original) (quoting United
As a result, we affirm the denial of Keys's Rule 29 motion for judgment of acquittal.
Keys argues that the introduction of testimony by Evans, Schaaf, and Mitchell that was not prefigured in pretrial interviews or reports constitutes a Brady violation.
Here, Keys contends that certain trial testimony by each of Evans, Schaaf, and Mitchell revealed inconsistencies with their respective pretrial reports and interviews. The Government counters that Keys cannot show that earlier disclosure of the substance of the "new" testimony would have altered the result of the proceeding. We agree with the Government.
First, the substance of the challenged testimony is inculpatory, rather than exculpatory: Evans testified that she bought crack cocaine from Keys, Schaaf testified that she saw a set of scales on Keys's counter, and Mitchell testified that he saw other individuals buying crack cocaine from Keys. Second, to the extent Keys argues that the "new" evidence might have been valuable for impeachment purposes, Keys in fact did impeach each of the three witnesses extensively with respect to inconsistencies between their testimony and their previous interviews with investigators and the prosecution. Given that Keys had the opportunity to use the substance of each witness's "new" testimony to impeach the witnesses, we cannot hold that a Brady violation occurred in this case. See United States v. Almendares, 397 F.3d 653, 664 (8th Cir.2005) ("Under the rule in our circuit Brady does not require pretrial disclosure, and due process is satisfied if the information is furnished before it is too late for the defendant to use it at trial."). Even if we were to construe the "new" testimony as indicative of the withholding of Brady materials, Keys "fails to show that the result of the trial would have been
Accordingly, we reject Keys's Brady claim.
For the foregoing reasons, we affirm the district court's denial of Keys's motion to suppress and request for a Franks hearing, denial of his motion for judgment of acquittal, and denial of his attempt to exclude certain testimony.