Drug, firearm convictions based on ‘middlemen’ testimony affirmed

Despite the unusual use of a middleman in a law enforcement controlled drug buy, the 7th Circuit Court of Appeals found sufficient evidence to uphold a Fort Wayne man’s convictions on multiple drug and firearms charges.

In United States of America v. Shawn Bacon, 20-1415, Fort Wayne police officers received multiple tips that Shawn Bacon was selling drugs out of his Fort Wayne apartment and that he was a convicted felon with multiple guns in his home. The officers set up a controlled buy, searching and wiring a confidential informant who had worked with the police before.

However, this controlled buy had a twist: The informant worked with a “middleman” who actually went into Bacon’s home to buy cocaine, then “sold” the drugs to the informant, who in turn turned them over to police. The so-called middleman, an acquaintance of the informant, was not wired or searched, and he was in Bacon’s home unsupervised for about 18 minutes. The acquaintance told the informant there were weapons “all over” the apartment.

Police repeated the same process with a different informant and middleman. As before, the middleman came back with drugs and claimed to have seen weapons in the apartment. He also said he bought the cocaine from someone named “Shawn.”

Officers used all of this information to obtain a search warrant for the apartment, which revealed guns, ammunition, a bulletproof vest, suspected bombs, meth, cocaine, fentanyl and other drug paraphernalia. Bacon was later stopped and apprehended in his car, which also contained drugs and guns.

Bacon was indicted on charges related to armed drug dealing and possession of firearms and explosives. He moved to suppress the evidence found in the search of his home, but the Indiana Northern District Court denied that motion.

However, when he learned the middlemen themselves had been arrested on drug charges, he asked the court to reconsider. His motion to suppress was again denied. He also was denied a hearing under Franks v. Delaware, 438 U.S. 154 (1978), which he had requested on the grounds that the probable cause affidavit supporting the search omitted critical information about the credibility of the middlemen.

A jury found Bacon guilty as charged, and the 7th Circuit affirmed Monday.

Writing for a unanimous appellate panel, Judge Amy St. Eve first noted the “novel risks” presented in this case — specifically, the use of middlemen who were not searched or wired. Even so, “unwitting informants” have “nothing to gain,” St. Eve said, because they don’t know law enforcement officers are involved in the scheme and thus have no reason to shift the blame.

“On balance, we conclude that the controlled buys in this case were reliable indicators that Bacon was selling drugs from his home,” the 7th Circuit held.

“As in other cases, the officers here did not actually see the drug sales,” St. Eve wrote. “… Still, they watched and listened as the confidential informants discussed the transactions with the middlemen; observed the middlemen enter and exit Bacon’s apartment; and obtained the drugs from the confidential informants immediately after the transactions.”

The panel also found sufficient probable cause for the search warrant, pointing to the multiple tips law enforcement received and the fact that the middlemen left Bacon’s apartment with drugs and confirmed the presence of firearms.

The court likewise upheld the denial of Bacon’s motion for a Franks hearing.

“Bacon faults officers for omitting that they did not know or search the middlemen and that neither they nor the confidential informants saw or heard the actual purchases. These omissions were immaterial because they were ‘clear from the face of the affidavit.’ United States v. Spears, 673 F.3 598, 605 (7^th Cir. 2012). The only reasonable interpretation of the affidavits is that officers did not know, search, or wire the middlemen,” St. Eve wrote.

“… Tellingly, Bacon’s only apparent basis for knowing about these omissions is the affidavit itself. If the omissions are plain to Bacon from the face of the affidavit, why would they not have been plain to the state-court judge issuing the warrant?”

Further, the panel held, the fact that the middlemen were later arrested does not impact their credibility given that the affidavit “already described them selling … illegal drugs.”

Finally, Bacon failed in his challenge to the sufficiency of the evidence against him, specifically as it related to the charges that he possessed a “destructive device,” that he knowingly possessed body armor and that he possessed with intent to distribute at least 400 grams of a substance containing fentanyl.