UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HANG LE-THY TRAN, Defendant-Appellant.
No. 04-1801
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 5, 2006
File Name: 06a0001p.06
Before: MERRITT, MOORE, and SUTTON, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 03-00175—David W. McKeague, District Judge. Argued: November 9, 2005. Decided and Filed: January 5, 2006.
COUNSEL
OPINION
MERRITT, Circuit Judge. Defendant Hang Le-Thy Tran was convicted by a jury of two counts of aiding and abetting another to commit arson in violation of
I. BACKGROUND FACTS AND PROCEDURE
Defendant Hang Le-Thy Tran owned and operated two businesses, Mimi’s Family Hair Care and Kimberly Beauty College, located in the suburbs of Grand Rapids, Michigan. On October 24, 2000, Mimi’s Family Hair Care was damaged by a small fire in the rear room of the salon. The fire marshal concluded that the cause of the fire was arson, and all other causes were ruled out. The Michigan State Police Laboratory was unable to identify the flammable liquid used to ignite the fire, but there were acetone and several other flammable hair and nail care products in the salon. While investigating a second fire at Kimberly Beauty College, a detective with the Kentwood Police Department received a letter naming a suspect in the Mimi’s Family Hair Care fire. The detective eventually located Hanh Ngo, a student at Kimberly Beauty College, who confessed to setting the fire at Mimi’s Family Hair Care at the defendant’s behest.
On March 24, 2002, Kimberly Beauty College was destroyed by fire, and an adjacent business suffered fire and smoke damage. The basement of Kimberly Beauty College escaped significant damage even though the fire completely destroyed the rest of the structure. The cause of the fire was determined to be arson, ignited through the use of a flammable liquid in conjunction with cotton, acting as a wick from the flammable liquid to other areas of the business. Acetone, a flammable liquid commonly used in beauty salons, was found in the basement of Kimberly Beauty College in unusually high quantities. The police were unable to identify the arsonist responsible for the fire that destroyed Kimberly Beauty College.
These offenses resulted in an indictment charging Tran with two counts of aiding and abetting another to commit arson in violation of
II. INTERSTATE COMMERCE
Tran argues on appeal that the government failed to introduce sufficient evidence to support the verdict in this case. According to Tran, the government failed to prove that Mimi’s Family Hair Care and Kimberly Beauty College affected interstate commerce, as it was required to do under Jones v. United States, 529 U.S. 848 (2000). We review a district court’s refusal to grant a motion for judgment of acquittal de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir. 2002). We may reverse the district court’s decision only if, after viewing the facts in the light most favorable to the government, we determine that no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307 (1979)).
This case is governed by Russell v. United States, 471 U.S. 858 (1985), in which the Supreme Court held that the arson of a two-unit apartment building that was used as rental property fell within the purview of
The Supreme Court’s later ruling in Jones v. United States, 529 U.S. 848 (2000), did not disturb the Court’s holding in Russell that the arson statute applies to rental properties. In Jones, the Supreme Court held that
In this case, there was sufficient evidence of an interstate commerce nexus to sustain the defendant’s conviction for violating
III. SEVERANCE OF COUNTS
Tran moved to sever the two counts of aiding and abetting another to commit arson in violation of
We also hold that the district court did not abuse its discretion by refusing to grant a severance under
The defendant has failed to show that she was prejudiced by a joinder of the offenses, and “absent a showing of substantial prejudice, spillover of evidence from one [count] to another does not require severance.” United States v. Johnson, 763 F.2d 773, 777 (6th Cir. 1985). Even if prejudicial spillover actually occurred, the defendant would still need to prove that such a spillover caused her substantial prejudice. No such showing has been made, even though there is a difference in the amount of evidence produced on each count. A difference in the quantum of evidence as to the two counts “is not grounds to overturn a denial of severance unless there is a substantial risk that the jury could not compartmentalize or distinguish between the evidence” produced on each count. United States v. Williams, 711 F.2d 748, 751 (6th Cir. 1983). The defendant’s conclusory statement that the joinder of the counts “affected” the jury’s ability to render a fair and impartial verdict does not suffice to show substantial prejudice. Therefore, the district court did not err in failing to grant the defendant’s motion to sever counts under
IV. THE MOTIONS TO SUPPRESS
The defendant challenges the denial of her motions to suppress evidence seized during the search of her mobile home and Kimberly Beauty College, arguing that, because of alleged deficiencies in the warrants and supporting affidavits, police obtained the evidence in violation of the Fourth Amendment. There were two search warrants issued in connection with the investigation of the defendant. On May 13, 2002, Detective Michael Struve obtained from Judge Steven Timmers of the Wyoming District Court a warrant to
Tran moved to suppress the evidence seized in the search of Kimberly Beauty College because the street number of the address on the warrant and the accompanying affidavit had been altered. Tran also moved to suppress the evidence seized in the search of her mobile home on the grounds that the warrant failed to establish the required nexus between the mobile home and the defendant and hence lacked probable cause. The district court denied the motions to suppress the evidence seized pursuant to the two warrants. First, the district court found that the inaccuracies in the warrant for Kimberly Beauty College did not render the warrant invalid, and the warrant should be upheld in any event on the basis of the good faith exception of United States v. Leon, 468 U.S. 897 (1984). Second, the district court ruled that the affidavit supporting the search of the defendant’s mobile home, when read in a common sense manner, established the relationship of the defendant to the place to be searched, and therefore, provided a substantial basis for concluding that there was probable cause to issue the warrant.
In reviewing the denial of a motion to suppress, we defer to the district court’s factual findings unless they are clearly erroneous. Legal conclusions, however, are reviewed de novo. United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004).
A. The Warrant for Kimberly Beauty College
The defendant claims that Detective Struve changed the street number of the address on the affidavit and warrant to search Kimberly Beauty College after the magistrate had signed the warrant, and the warrant was, therefore, invalid. The challenged alterations involve the address of Kimberly Beauty College, 931 28th Street S.W., which was mistakenly typed as “937” 28th Street S.W. in the warrant and accompanying affidavit. In each instance, Detective Struve corrected the mistake after Judge Timmers had signed the warrant and without informing the judge of the mistake. We hold that the alteration of the warrant and affidavit by the executing officer was improper, but that the alteration did not eliminate probable cause or render the warrant invalid.
It is clear that the incorrect address in the warrant and the affidavit does not itself invalidate the search warrant. The Fourth Amendment requires a warrant to “particularly describ[e] the place to be searched, and the persons or things to be seized.”
We have repeatedly upheld warrants like the one at issue where one part of the description is inaccurate, but the description has other accurate information to identify the place to be searched with particularity. See, e.g., Pelayo-Landero, 285 F.3d at 497; United States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998). In United States v. Durk, the house numbers of the searched residence had been transposed from “4216” to “4612” in the warrant. We found that the warrant was valid because it sufficiently described the homeowner’s residence despite the inaccuracies. The warrant at issue in Durk identified the place to be searched as a single-family red brick ranch home on the north side of Fulton Street and described a metal storage shed in the yard of the home. Durk, 149 F.3d at 466. Similarly, in United States v. Pelayo-Landero, the warrant at issue identified the place to be searched as a mobile home located at “1418 Mae Collins Road” when the home’s address was actually 1412 Mae Collins Road. Nevertheless, this Court found that the warrant included a sufficient description of the place to be searched because the warrant described the mobile home by color, by certain exterior trim, and by a wooden deck, and noted that the number “954” was displayed under a window air conditioner on the right end of the mobile home. Pelayo-Landero, 285 F.3d at 497. Moreover, in both Durk and Pelayo-Landero, we found that there were additional circumstances that ensured that the inaccuracies in the warrant would not lead to a mistaken search of other premises, and accordingly, we upheld the warrants based on these findings. Pelayo-Landero, 285 F.3d at 497 (the executing officer had prepared the affidavit incorporated into the warrant, had previously conducted undercover transactions with the defendant, and had monitored an informant’s recent marijuana purchase from the defendant at the search premises); Durk, 149 F.3d at 466 (the executing officer had just come from the house to be searched, and he was the affiant on the warrant).
In the present case, the warrant and supporting affidavit specified that the place to be searched was “Kimberly Beauty College, 937 28th St. S.W., Wyoming, MI 49509. Specifically a portioned off storage room in the lower level.” It is undisputed that two out of the three references in the warrant to the place to be searched were accurate. Kimberly Beauty College was, in fact, located on 28th Street S.W. in the 900 block, and there was a portioned-off storage room in the lower level of that building. Thus, even though the street address was inaccurate, the executing officers could still locate and identify Kimberly Beauty College with reasonable effort. Moreover, as in Durk and Pelayo-Landero, additional circumstances indicate that there would not have been a mistaken search of other premises. The executing officer, Detective Struve, was also the warrant’s affiant and the principal investigator of the fire at Kimberly Beauty College. At the time he filled out the affidavit, Detective Struve had already been to Kimberly Beauty College and had accompanied members of the fire department into the College’s basement. Thus, the description in the warrant to search Kimberly Beauty College was sufficiently particular despite the inaccuracies.
B. The Warrant for 338 Vinedale SE
Tran next claims that the warrant for her mobile home was lacking in probable cause since it failed to state the required nexus between the place to be searched and the arson. In determining whether there is probable cause to issue a search warrant, the task of the issuing magistrate is to determine whether “there is a “fair probability,” given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place.” United States v. Shields, 978 F.2d 943, 946 (6th Cir. 1992). We must therefore assess whether the issuing magistrate had “a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited.” Id. In evaluating the issuing magistrate’s probable cause determination, we apply a flexible “totality of the circumstances” approach, which permits us to evaluate the particular facts of each case. Illinois v. Gates, 462 U.S. 213, 238 (1983). Furthermore, a magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” Id. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)).
The affidavit supporting the search warrant for 338 Vinedale SE, Kentwood, Michigan, described the residence with particularized detail, setting forth both the mobile home’s exact location and its physical
In this circuit, the failure to establish an adequate nexus between the residence and any criminal activity within the four corners of the affidavit is not necessarily fatal, provided that the information is actually presented to the magistrate through sworn oral testimony. Shields, 978 F.2d at 946. The Fourth Amendment does not require that the basis for probable cause be established in a written affidavit; it merely requires that the information be given by “Oath or affirmation” before a judicial officer.
A review of Detective Struve’s written affidavit and sworn oral testimony given before Judge Timmers reveals that probable cause existed to support the issuance of a search warrant for Tran’s mobile home. Here, Detective Struve submitted a written affidavit that contained a sufficiently detailed description of Tran’s residence, of the arson at Kimberly Beauty College, and of the items to be seized. His oral testimony elaborated on the information provided by the affidavit. Detective Struve testified at the suppression hearing that it was Judge Timmers’ practice to question officers at length under oath about the relationship between the place to be searched and the investigation. During such questioning, Detective Struve established that the defendant lived at the residence to be searched, and that he believed that evidence of the arson would be found in the defendant’s mobile home. Whatever deficiencies that may have existed in the establishment of probable cause in Detective Struve’s affidavit were cured by Detective Struve personally during his appearance before Judge Timmers. We hold that the affidavit and oral testimony together established a “fair probability” that evidence of a crime would be found in Tran’s mobile home, see Gates, 462 U.S. at 238, and accordingly supported the magistrate’s finding of probable cause.
V. SENTENCING
Tran asserts for the first time on direct appeal that she is entitled to re-sentencing in light of the Supreme Court’s recent decisions in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Blakely v. Washington, 542 U.S. 296 (2004). The government recognizes that re-sentencing is required under this circuit’s precedents, see United States v. Oliver, 397 F.3d 369 (6th Cir. 2005); United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), and we agree.
VI. CONCLUSION
For the foregoing reasons, we VACATE the sentence of the district court and REMAND for re-sentencing in light of the Supreme Court’s decision in Booker. As to the other errors raised by the defendant, we AFFIRM the district court’s judgment.