Chаrles Woolsey was convicted of drug and firearms offenses after police executed a search warrant at his residence and discovered a cache of guns, cocaine, marijuana, and methamphetamine. On appeal Woolsey challenges the denial of his motion to suppress the evidence seized at his house, as well as the district court’s exclusion of two witnesses at his jury trial. The government cross-appeals and argues that at sentencing the district court erred in refusing to impose a life term on his conviction for possession of methamphetamine with intent to distribute. We affirm Wool-sey’s convictions but vacate his sentence on the methamphetamine count and remand with directions to impose a life term on that count.
I.
A. Initial Investigation
In March 2005, after police in Paoli, Indiana, had received complaints of drug activity, Police Chief Barry Chastain and Assistant Police Chief Josh Babcock visited the home of Melissa McCoy. The man who answered the door — Robert “Bo” Tuell — exhibited signs of heavy drug abuse, including sores on his face. Chas-tain and Babcock knew Tuell, if distantly, and had noticed him around tоwn in recent months in worsening health. The officers had also heard rumors that Tuell was selling methamphetamine. Their conversation was brief. Chastain and Babcock told Tuell that if he continued to use and sell drugs he would “end up back in jail or worse,” that he needed to stop, and that help was available at a local drug rehabilitation center. Neither officer threatened arrest.
A few weeks later Tuell contacted Chas-tain and asked for assistance. Tuell explained that he was “strung out,” had ruined a lot of lives, and no longer wanted to be involved with drugs. Chastаin then contacted a local rehabilitation counselor, and the three men met to discuss Tuell’s problems. During the meeting Tuell admitted that he was a drug dealer' — and that he was selling drugs for Charles Woolsey. Chastain invited Tuell to elaborate, although he did not offer Tuell any reward for the information or threaten Tuell with arrest. Nevertheless, Tuell told Chastain that in the previous week he had seen over two pounds of methamphetamine at Woolsey’s house as well as marijuana and cocaine, all of which could be found in Woolsey’s tool box, a lock bоx, or in various trash cans inside the house. Tuell also mentioned that Woolsey had recently traveled to Texas, as he did each month, to obtain a fresh shipment of drugs. When asked to identify Woolsey, Tuell reported that Woolsey drove a mid-1990s blue Chevrolet extended-cab pickup truck. Tuell also provided a home phone number and cell phone number for Wool-sey. Chastain immediately communicated this information to Babcock, who supervised all drug investigations.
In an effort to corroborate Tuell’s statements, Babcock spoke with Indiana Statе Trooper Jonathan Lamb, who confirmed Tuell’s description of Woolsey’s pickup. Babcock also spoke with Sergeant Paul Andry of the Indiana State Police, who *543 told Babcock that Tuell had once before provided reliable information that led to a criminal conviction, albeit ten to twelve years earlier. Babcock then prepared an affidavit of probable cause (summarizing the information provided by Tuell, Lamb, and Andry) and a proposed search warrant for Woolsey’s house. In his affidavit, Bab-cock revealed that Tuell (described in the affidavit as a confidential informant) was a drug addict:
The C.I. is neither seeking leniency nor financial compensation in exchange for the information that they have [sic] given. The C.I. is concerned about the use of illegal drugs, especially methamphetamine, in the county. The C.I. also stated that they was [sic] addicted to methamphetamine and needs help for his addiction.
A state judge approved the search warrant.
On April 7, 2005, law enforcement officers executed the search warrant and discovered approximately one-half pound of cocaine, two pounds of methamphetamine, thirty-one pounds of marijuana, numerous guns, and $16,000 in currency in and around Woolsey’s home. Federal authorities then took over the investigation and charged Woolsey in a superseding indictment with possession with intent to distribute 500 grams or more of methamphetamine, see 21 U.S.C. § 841(a)(1), (b)(l)(A)(viii), possession with intent to distribute cocaine, see id. U.S.C. § 841(a)(1), possession with intent to distribute marijuana, see id. U.S.C. § 841(a)(1), (b)(1)(D), possession of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A)®, and possession of a firearm by a felon, see id. U.S.C. § 922(g)(1).
B. District Court Proceedings
Before trial Woolsey moved to suppress the evidence seized from his home because, he maintained, the search warrant was not supported by probable cause. Woolsey argued that there was no significant corroboration of Tuell’s statements prior to the search and Tuell’s reliability as an informant could not rest on a single instance of useful information provided over a decade ago. Woolsey also sought suppression under a second, alternative theory, asserting that Babcock’s affidavit provided false information and omitted material facts that undermined probable cause.
See Franks v. Delaware,
Following a suppression hearing, the district court concluded that the supporting affidavit did not establish probable cause but held, nonetheless, that suppression was inappropriate in light of the exception enunciated in
United States v. Leon,
So, even with the deference that a court in my situation owes to the judge at the time, and even in light of the flexible and common sense аpproach we take to issues of probable cause, I think this was too thin to establish probable *544 cause. There was no corroboration of anything incriminating and it all depended on the uncertain reliability of Mr. Tuell.
There are differences between what Chastain and Babcock remember about what Tuell told Chastain and what Chas-tain relayed to Babcock, and what Tuell remembers about whether he said anything about marijuana, and whether he told Chastain anything about his source on or about April 7th, as opposed to a week or so later.
I think Chаstain and Babcock are credible. I don’t think what they put in the affidavit is a hundred percent accurate, but I do believe that they were being honest in relaying the information.
I also don’t find that there were deliberate omissions or deliberate deceptions in what was presented to the judge. They let the judge know that Tuell was a methamphetamine addict. The information that they had about whether he was involved in dealing was sketchy enough and dicey enough that I don’t believe they acted irresponsibly and certainly not dishonestly by leaving that information out.
After this ruling, Woolsey requested that the district court compel the appearance at trial of two men in state custody, Mark Frentz and David Turner. See 28 U.S.C. § 2241(c)(5). Woolsey informed the court that he anticipated eliciting the following testimony: prior to Woolsey’s arrest, Frentz — who at the time was in the county jail awaiting trial on unrelated drug and murder charges — had suspected that Woolsey was involved romantically with his girlfriend, and had tried to retaliate by soliciting other inmates, including Turner, to kill Woolsey or plant drugs at his residence. Despite skepticism that the two men could provide admissible testimony even if they were willing, the court granted Woolsey’s request for writs of habeas corpus ad testificandum. See id.
On the second day of trial, Frentz and Turner proffered their testimony outside the presence of the jury. Not surprisingly, Frentz invoked his Fifth Amendment right against self-incrimination and refused to answer questions about his conversations with other jail inmates. He did, however, deny asking anyone in jail to plant drugs on Woolsey’s property. The district court in turn concluded that Frentz had no relevant testimony to offer the jury and refused to permit his appearance “simply for the purpose of inviting him to take the 5th Amendment in front of the jury.”
Turner’s proffer was more complex. The district court summarized the proposed testimony following a series of questions posed to Turner:
The critical testimony, as I understand it, is that Mr. Turner would testify that shortly after Mr. Frentz arrived in his cell block ... in late January of 2005, Mr. Frentz expressed jealousy and hatred towards Mr. Woolsey, and expressed a desire to either kill Mr. Wool-sey or set him up by having someone plant drugs at Mr. Woolsey’s property.
The testimony would also be that Mr. Turner did not accept this invitation; that Mr. Frentz remained in custody at all relevant times, as did Mr. Turner; and that there is no evidence from Mr. Turner that Frentz invited anyone else to carry out such a scheme.
The district court concluded that Turner’s testimony would not be relevant because it established only Frentz’s motive but not opportunity. After all, the court noted, “we know that Turner didn’t do it; Frentz didn’t do it himself; and there’s no evidence that anybody else did.” Furthermore, the court reasoned, the particular *545 frame-up that Turner had said Frentz solicited was inconsistent with the evidence found in Woolsey’s home. Turner had reported that Frentz proposed building a methamрhetamine laboratory in an outbuilding on Woolsey’s property and scattering loose marijuana elsewhere on the premises. But, as the court observed, the methamphetamine, cocaine, and marijuana actually seized from Woolsey’s residence was worth over $40,000, an amount that far exceeded what Frentz could have mustered, however indirectly, after his arrest and the seizure of his own drugs. Even if Turner’s testimony was relevant, the court continued, it would not satisfy Federal Rule of Evidence 403 because its potential to delay the trial or confuse аnd mislead the jury exceeded its slight probative value (“virtually zero”). Finally, the court added, the hearsay exception for statements against interest would not authorize Turner to testify about Frentz’s jailhouse solicitation because of the absence of corroborating circumstances that might support the trustworthiness of the statements attributed to Frentz. See Fed.R.Evid. 804(b)(3).
At the conclusion of trial, the jury found Woolsey guilty of all five offenses charged in the superseding indictment.
C. Sentencing
Prior to trial the government filed an enhancement information,
see
21 U.S.C. § 851, detailing two prior drug felonies that would trigger a mandatory term of life imprisonment if, as was alleged in the first count of the superseding indictment, Woolsey possessed for distribution at least 500 grams of methamphetamine,
see
21 U.S.C. § 841 (b)(1)(A)(viii). At sentencing Woolsey conceded that his 1997 Indiana conviction would count for enhancement purposes, but he challenged the use of his 1974 federal conviction. In 1974, Woolsey explained, an Arizona district court had sentenced him to two years’ probation under the Federal Youth Corrections Act for possessing with intent to distribute approximately 125 pounds of marijuana. Woolsey recounted that his probation officer had informed him that this conviction would be set aside automatically upon successful completion of his probation. But this information was not accurate, as Wool-sey now understood; only an
early
discharge of probation had the effect of setting aside a conviction under the Act, and because Woolsey’s term was not discharged early, his only recourse after he completed his probation in 1976 was to petition the district court in Arizona to grant him a nunc pro tunc early unconditional discharge and set aside his cоnviction.
See Tuten v. United States,
Eager to avoid life imprisonment, Wool-sey asked the district court in this case to set aside his 1974 conviction. The government urged the court to reject the motion for numerous reasons, chief among them was that the court lacked jurisdiction to fulfill the request. Furthermore, the government insisted, Woolsey’s maneuvering constituted a collateral attack on his earlier conviction — and thе clock had long since run on the five-year statute of limitations found in 21 U.S.C. § 851(e). The court responded by postponing Woolsey’s sentencing so he could seek relief from the Arizona district court. But after nearly five months had passed with no ruling *546 from Arizona, 1 the court decided to proceed with sentencing but disregard the 1974 conviction for purposes of § 841(b)(1)(A):
I believe it is also appropriate under these circumstances to not count the 1974 marijuana conviction for this purpose. On that issue, with respect to both the guidelines and the 851 issue, I will say that it seems to me that there is no аpparent reasons in this record why the defendant should not have been discharged early as to what is the customary practice as was intended and, in essence, the Court ought to treat as having been done what should have been done under general equitable powers.
Still, even one prior felony drug conviction subjected Woolsey to a twenty-year mandatory minimum. See 21 U.S.C. § 841 (b)(1)(A)(viii). And his § 924(c) charge carried an additional, consecutive five-year mandatory minimum term. See 18 U.S.C. § 924(c)(1)(A)®. The applicable guidelines imprisonment range, without regard to the statutory mínimums, was 235 to 293 months aftеr pairing Woolsey’s total offense level of 36 with his criminal history category of III. Ultimately, the court imposed concurrent sentences totaling 240 months on the drug and § 922(g)(1) counts plus the consecutive 60-month term on the § 924(c) count. All told, Woolsey would serve 300 months in prison.
II.
A. The Leon Question
On appeal Woolsey renews his argument that he was entitled to suppression because, according to Woolsey, Leon’s good-faith exception cannot save the search warrant. The government takes up the Leon question as well but does not probe whether probable cause suppоrted the warrant — the preceding question.
A faulty warrant and an illegal search do not necessarily entitle a defendant to suppression of evidence.
United States v. Mykytiuk,
An officer’s decision to obtain a warrant is prima facie evidence of good faith.
United States v. Otero,
Woolsey contends that Babcock could not have obtained the warrant in good faith because his affidavit conveys false information and omits significant facts that undermine probable cause — all in an effort to deceive the issuing judge.
See Leon,
Woolsey’s list is not enough to win his appeal, however. In order to prevail, a defendant must establish, by a preponderance of the evidence, that the affidavit contained false or misleading information, that the deceptive information was included intentionally or with reckless disregard for the truth, and that the information in question was essential to the finding of probable cause.
See Leon,
Woolsey’s challenge falters because he did not establish any intentional or reckless falsehood or omission in the affidavit. Woolsey argued before the district court that the statements about marijuana and about Woolsey’s drug source are false because, at the suppression hearing, Tuell denied making them to Chastain. But Chastain testified at the same hearing that Tuell
did
tell him about the marijuana and Woolsey’s source. And the district court did not choose to credit one account over another because the court found that any erroneous information included in Chas-tain’s affidavit was inadvertent and not reckless. On this point Woolsey is silent, and we are unpersuaded by his suggestion that the court clearly erred in its finding.
See United States v. Biggs,
As to the omissions, Woolsey also failed to develop any argument before the district court that Babcock intentionally or recklessly deceived the issuing judge.
See Franks,
Woolsey had a second suppression theory before the district court, although he abandoned it prematurely. His argument was, essentially, that the affidavit did not estаblish probable cause and therefore suppression was appropriate. But that ignores
Leon
altogether. The very point of that decision is that suppression does not necessarily follow from a determination that probable cause was lacking. The question of probable cause is only the first step, and on this question the district court agreed with Woolsey that probable cause was absent. The next step for Woolsey was to argue that the affidavit was so lacking in indicia of probable cause that an officer’s belief in its existencе would have been completely unreasonable.
See Leon,
courts have clearly held that a materially similar affidavit previously failed to establish probable cause under facts that were indistinguishable from those presented in the case at hand [or] the affidavit is so plainly deficient that any reasonably well-trained officer would have known that his affidavit failed to establish probable cause and that he should not have apрlied for the warrant.
Koerth,
B. Exclusion of Witnesses
Woolsey also protests the district court’s decision to exclude the testimony of Frentz and Turner at trial. We review evidentia-ry rulings of this sort for abuse of discretion.
United States v. Evans,
We begin with Frentz. Woolsey insists that Frentz’s “admission to participation in the scheme [to plant drugs] and the execution thereof is admissible to show that Woolsey neither had knowledge of the drugs presence or intent to distribute them.” The district сourt might have agreed except that Frentz never admitted anything of the sort. To the contrary, when questioned outside the jury’s presence, Frentz
denied
speaking with anyone in jail about planting drugs on Woolse/s property. And when the questions during that proffer session turned to Frentz’s contact with Turner in jail, Frentz invoked the Fifth Amendment and refused to answer. Yet Woolsey contends that he was entitled to question Frentz in front of the jury, if only to have Frentz again refuse to testify. He is mistaken. A jury may not draw any inference from an individual’s decision to exercise his right against self-incrimination under the Fifth Amendment.
See United States v. Loggins,
As to Turner, Woolsey argues that his testimony was admissible under various hearsay exceptions.
See
Fed.R.Evid. 804(b)(3), 807;
Chambers v. Mississippi,
Evidence is relevant if it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.” Fed.R.Evid. 401. One test of relevance is whether “its exclusion would leave a chronological and conceptual void in the story.”
United States v. Westbrook,
C. Sentencing Error
The government cross-appeals to challenge the district court’s decision to ignore, for purposes of § 841(b)(1)(A), Woolsey’s 1974 federal conviction. We review questions of law related to sentencing de novo.
See United States v. Mendoza,
Underlying the district court’s decision is the Federal Youth Correсtions Act (YCA), since repealed, which authorized a sentencing court to unconditionally discharge a youth offender from probation before the end of the term and thus automatically set aside the conviction.
See
18 U.S.C. § 5021(b) (repealed 1984);
Tuten v. United States,
The Indiana district court was not free to ignore Woolsey’s earlier conviction. First, as
Tuten
makes clear, the court that imposed a sentence under the YCA should be the one to exercise the discretion afforded by the Act.
See id.
at 662-63, 668,
Even if § 851(e) posed no obstacle to Woolsey, he would still have been barred from challenging his 1974 conviction at sentencing. Sentencing is not the right time to collaterally attack a prior conviction unless the prior conviction was obtained in violation of the right to counsel — which Woolsey does not suggest.
See Daniels v. United States,
Conclusion
We AufiRM Woolsey’s convictions but Vaoate his sentence as to the methamphetamine count and Remand with instructions to impose a sentence of life imprisonment on that count.
Notes
. The Arizona court eventually denied the motion on February 5, 2007, more than three months after Woolsey was sentenced in this case.