Submitted: June 13, 2019
from United States District Court for the District of
Nebraska - Lincoln
COLLOTON, KELLY, and ERICKSON, Circuit Judges.
ERICKSON, CIRCUIT JUDGE.
a jury trial, Rodney Mazzulla was convicted of conspiracy to
distribute and possess with intent to distribute 50 grams or
more of methamphetamine in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(A), possession with intent to
distribute 5 grams or more of methamphetamine in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and
distribution of and possession with intent to distribute 50
grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A). The district
court sentenced Mazzulla to 312 months'
imprisonment on each count, served concurrently, followed by
concurrent five-year terms of supervised release.
appeal Mazzulla alleges a number of errors. He asserts the
district court erred when it: (1) denied his motion to
suppress the warrant-based searches of his residence; (2)
denied his request for a Franks hearing; (3) denied
his request for an in camera review of Officer
Gratz's personnel file; (4) allowed a witness to testify
as to an altercation over Mazzulla's Federal Rule of
Evidence 403 objection; (5) failed to give a simple
possession instruction. Finally, Mazzulla contends that the
evidence was insufficient to support his convictions. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
Lincoln, Nebraska, Police Department ("LPD") began
investigating Rodney Mazzulla in July 2015 when it received
information from confidential sources that a man named
"Rob," who owned a tree-trimming service, was
selling methamphetamine. Officer Anthony Gratz contacted
Mazzulla claiming to have a fallen tree that needed to be
removed and Mazzulla agreed to meet him. During the meeting,
Mazzulla admitted to possession of a personal quantity of
methamphetamine and consented to a search of his vehicle.
During the search Officer Gratz found 3.1 grams of
methamphetamine. Mazzulla was arrested and brought to the
police station, where he was read a Miranda warning.
Mazzulla waived his Miranda rights and agreed to an
interview. During the interview, Mazzulla admitted that over
the past two years he sold up to two ounces of
methamphetamine per week to his employees. Despite these
admissions Mazzulla was not indicted in 2015.
March 2017, Officer Gratz received a confidential tip
describing Shawndell Burke's involvement in drug
trafficking out of her residence located at 1010 South 10th
St. Officer Gratz conducted surveillance of the residence and
observed what appeared to be a hand-to-hand drug transaction
involving two vehicles. One of the persons involved was
Burke. Officer Gratz attempted a traffic stop but Burke fled
and was able to avoid arrest.
April 2, 2017, Officer Gratz received another confidential
tip that Troy Utley was selling methamphetamine out of
Burke's residence. Later that evening Officer Gratz
encountered Utley with methamphetamine on his person and
arrested him. On the way to the police station, Utley pointed
out a garage at 1421 S. Folsom St. ("Folsom St.
garage"), stating Mazzulla was residing there.
police station Utley waived his Miranda rights and
consented to an interview, during which he stated that Burke
regularly kept between a half-pound and two pounds of
methamphetamine. Utley identified Mazzulla as Burke's
source. Utley also told Officer Gratz that Burke and Mazzulla
were living in the Folsom St. garage.
the Utley interview, Officer Gratz returned to the Folsom St.
garage to conduct surveillance, arriving at about 4:00 a.m.
Fifteen minutes later Officer Gratz saw Richard Scov leave
the garage on a bicycle. Officer Gratz stopped Scov for a
traffic violation but before he could make actual contact
with him, another officer observed Scov drop something.
Officer Gratz retrieved the item, which turned out to be a
pouch containing a small amount of methamphetamine. Scov
related that he had just left "Rod Azzu's"
residence, that "Azzu" lived in a garage, and that
he believed "Azzu" was still there. Officer Gratz
sought and obtained a search warrant for the Folsom St.
garage. Law enforcement executed the warrant at around 7:15
entered the garage where they observed a parked camper.
Inside the camper they saw people moving about. The officers
ordered the people to come out, and Mazzulla and a woman
(later identified as Rhonda Meador) stepped out. The officers
searched the motor home and found approximately 49 grams of
methamphetamine, a pistol, and some drug paraphernalia.
Mazzulla and Meador were arrested on suspicion of drug
days later, Burke retrieved cash from the camper which had
been left in the Folsom St. garage and posted bond for
Mazzulla and Meador. Burke was arrested in her home on April
21, 2017, and taken to the Lancaster County jail where she
waived her Miranda rights and made a statement.
Burke told officers that she had been to Mazzulla's
residence where she had observed a quantity of
methamphetamine in the gas tank of a black motorcycle. Armed
with this information, Officer Gratz prepared affidavits
supporting warrants for the search of both the 1010 South
10th St. and the 1421 S. Folsom St. residences. In each
affidavit, Officer Gratz attested that Burke was living at
the respective address for which he was obtaining search
warrants, rather than indicating that Burke was residing
intermittently at each place. The search of Burke's 1010
South 10th St. residence resulted in the seizure of 85.1
grams of methamphetamine located in Burke's bedroom. The
search of the Folsom St. garage was done in the early morning
of April 22 and resulted in seizure of 210 grams of
methamphetamine found under the hood of Burke's green van
parked in the garage.
and Mazzulla were indicted as co-defendants. Mazzulla was
indicted on four counts: (I) conspiracy to distribute and
possess with intent to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A); (II) possession with intent to distribute 5
grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B); (III) possession of
a firearm in furtherance of the drug trafficking crimes
charged in counts I and II in violation of 18 U.S.C. §
924(c)(1)(A)(i); and (V) distribution of and possession with
intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and
filed a motion to suppress both searches of the Folsom St.
garage. He contended the affidavit for the first search
warrant failed to establish sufficient probable cause for the
issuance of the warrant, and the second warrant improperly
relied on fruits of the allegedly illegal first search.
Mazzulla also filed a motion for a Franks v.
Delaware, 438 U.S. 154 (1978), hearing, claiming that
both affidavits contained statements made with reckless
disregard of the truth and intentional or reckless omissions
that made the affidavits misleading.
magistrate judge found that the information obtained from
confidential informants was sufficiently corroborated in two
ways: first, by the officers' investigation, and second,
because the informants' statements corroborated each
other. While the motions were pending, Mazzulla's counsel
was allowed to withdraw as a result of recently discovered
conflict. On October 24, 2017, the magistrate judge
recommended the district court deny the suppression motion
and the motion for a Franks hearing.
the recommendation was adopted by the district judge,
Mazzulla's new counsel moved to limit the scope of the
ruling on the suppression motion and for leave to file
additional briefing. The court granted the motion, withdrew
the prior findings and recommendation, and allowed additional
briefing on the suppression motion with regard to the
searches of the Folsom St. garage. After the supplemental
briefing was complete Mazzulla filed a supplemental motion to
suppress and request for a Franks hearing.
second motion Mazzulla incorporated all of the original
arguments and for the first time asserted that both of the
Folsom St. garage search warrants failed to establish a nexus
between the drugs sought and the location searched. In
seeking a Franks hearing Mazzulla argued that
Officer Gratz intentionally omitted material facts from the
affidavits and that he made materially false statements. The
magistrate judge found that each affidavit established a
sufficient nexus, and there was probable cause to search the
garage on both occasions. The magistrate judge also found
that, assuming Officer Gratz omitted facts or made false
statements in the warrant affidavits, Mazzulla "failed
to show these misrepresentations or concealments misled the
issuing judge or were material to the finding of probable
cause." DCD 76 at 15. The magistrate judge found that
Mazzulla failed to show that Officer Gratz willfully or
recklessly concealed any material facts, and denied the
Franks hearing. Finally, the magistrate judge
granted an evidentiary hearing on whether the motor home was
a vehicle or a residence.
a January 30, 2018, hearing the magistrate judge made further
findings as to the nature of the camper and recommended that
the motion to suppress should be denied because even though
the camper did not appear to be a residence it was readily
capable of being driven, and fell within the automobile
exception as described in United States v. Holleman,
743 F.3d 1152, 1158 (8th Cir. 2014). The magistrate judge
continued to recommend ...