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United States v. Mazzulla

United States Court of Appeals, Eighth Circuit

August 2, 2019

United States of America Plaintiff - Appellee
v.
Rodney P. Mazzulla Defendant-Appellant

          Submitted: June 13, 2019

          Appeal from United States District Court for the District of Nebraska - Lincoln

          Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         Following 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[1] sentenced Mazzulla to 312 months' imprisonment on each count, served concurrently, followed by concurrent five-year terms of supervised release.

         In this 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.

         I. Background

         The 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.

         In 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.

         On 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.

         At the 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.

         After 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 a.m.

         Officers 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 trafficking.

         A few 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.

         Pre-Trial Motions

         Burke 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 841(b)(1)(A).[2]

         Mazzulla 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.

         A 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.

         Before 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.

         In the 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.

         Following 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 ...


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