United States v. Moody

• Decision Date: 29 July 2019
• Docket Number: No. 18-4213,18-4213
• Citation: 931 F.3d 366
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Benitez Auguarius MOODY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

931 F.3d 366

UNITED STATES of America, Plaintiff - Appellee,

v.Benitez Auguarius MOODY, Defendant - Appellant.

No. 18-4213

United States Court of Appeals, Fourth Circuit.

Argued: December 13, 2018

Decided: July 29, 2019

ARGUED: James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant. Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Sherrie S. Capotosto, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Before MOTZ, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Motz and Judge Agee concurred.

RICHARDSON, Circuit Judge:

After a jury convicted Benitez Auguarius Moody of federal drug and firearm offenses, he sought an evidentiary hearing to challenge a facially sufficient search warrant affidavit. Such hearings are called " Franks hearings," named for the Supreme Court’s decision permitting them in Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In his request, Moody argued that a police officer’s trial testimony contradicted her search warrant affidavit that had led to evidence used at his trial. The district court, however, refused to hold a Franks hearing, finding that Moody had failed to make the necessary threshold showing. We affirm.

I.

On March 24, 2016, as part of a larger investigation into narcotics trafficking, police used a confidential informant to buy heroin from Moody, a suspected drug dealer. Later that evening, Portsmouth Police Detective Beth Shelkey applied for warrants to search Moody’s home (1212 Lindsay Avenue) and vehicle (a black BMW). Shelkey’s supporting affidavit described the investigation, including the controlled heroin purchase on March 24 as well as other drug transactions:

During the past 6 months, this affiant and other members of the Portsmouth Police Department [Special Investigations Unit] have utilized Confidential Informants who have been up to and inside of 1212 Lindsay Ave Portsmouth, VA and purchased quantities of heroin and cocaine from MOODY. During the investigation controlled purchases have been conducted directly from 1212 Lindsay Ave Portsmouth VA and from a 2004 black in color BMW convertible displaying Virginia tags VLD-9617 reregistered to MOODY.

....

Within the past 24hrs this affiant and other members of the Portsmouth Police Department utilized a Confidential Informant who placed a telephone call to MOODY asking to purchase heroin from MOODY. MOODY arranged to meet the Confidential Informant in a pre arranged location. During this controlled purchase, MOODY and other co-conspirators (two unidentified black females) were observed leaving from 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre arranged location and selling the Informant heroin. The heroin was recovered by members of the Portsmouth Police Department Special investigations Unit, field tested and resulted positive for heroin.

J.A. 446. A state magistrate issued the warrants that same day. The resulting searches uncovered four firearms, drugs, drug paraphernalia, and thousands of dollars in cash. Moody was ultimately indicted by a federal grand jury on multiple counts of drug possession with intent to distribute, drug distribution, and firearm offenses.

Moody chose to go to trial. The Government called one of the informants identified in the affidavit, who testified about her practice of buying drugs from Moody and recounted her controlled heroin purchase on March 24. The informant explained that she had arranged the drug purchase with Moody on the telephone and that two of his associates handled the physical transfer of drugs and money at the meeting location. In doing so, she acknowledged that Moody was not physically present for the drug delivery.

This informant’s testimony was echoed by Detective Shelkey, who also testified that Moody was not physically present for the exchange. Shelkey explained that the informant told her that two unidentified women delivered the drugs. And she testified that the surveillance team told her that these women came from Moody’s house. Shelkey also confirmed the informant’s testimony that Moody "directed" the transaction remotely, a fact that Shelkey herself knew from listening to the informant’s phone call with Moody. J.A. 246–47.

After three days of testimony, the jury convicted Moody on three drug counts and two firearm counts but acquitted him on ten other drug charges. Only then did Moody seek a Franks hearing. In support of this request, he claimed that Shelkey’s affidavit falsely stated that he was physically present for the drug exchange on March 24. The district court, without deciding whether the post-verdict motion was timely, denied Moody’s request on the merits, concluding that he had failed to satisfy the preliminary showing needed to justify a Franks hearing.

After sentencing, Moody timely appealed the Franks ruling. We have jurisdiction under 28 U.S.C. § 1291. And as always, we review the district court’s legal determinations de novo and its factual findings for clear error. United States v. White , 850 F.3d 667, 672 (4th Cir. 2017).

II.

On appeal, Moody argues that a Franks hearing was required because Shelkey intentionally or recklessly made the false statement that Moody was physically present during the March 24 controlled purchase. He also raises several other arguments about the affidavit for the first time on appeal. After describing the legal framework, we address each in turn.

A.

"An accused is generally not entitled to challenge the veracity of a facially valid search warrant affidavit." United States v. Allen , 631 F.3d 164, 171 (4th Cir. 2011). A Franks hearing provides a criminal defendant with a narrow way to attack the validity of an affidavit. But to obtain the hearing, a defendant must make a "substantial preliminary showing" that (1) law enforcement made "a false statement"; (2) the false statement was made "knowingly and intentionally, or with reckless disregard for the truth"; and (3) the false statement was "necessary to the finding of probable cause." White , 850 F.3d at 673 (quoting Franks , 438 U.S. at 155–56, 98 S.Ct. 2674 ). Given the "presumption of validity with respect to the affidavit supporting the search warrant," Franks , 438 U.S. at 171, 98 S.Ct. 2674, a defendant must satisfy this "heavy" burden before a hearing takes place. United States v. Tate , 524 F.3d 449, 454 (4th Cir. 2008).

The first required showing, of falsity, cannot be conclusory and must rest on affidavits or other evidence. See Franks , 438 U.S. at 171, 98 S.Ct. 2674 ; United States v. Clenney , 631 F.3d 658, 663 (4th Cir. 2011). As a result, the defendant cannot rely on a purely subjective disagreement with how the affidavit characterizes the facts. Rather, there must be evidence showing that the statements at issue are objectively false.

The second showing, requiring intentional falsity or reckless disregard for the truth, is just as demanding. An innocent or even negligent mistake by the officer will not suffice. Franks , 438 U.S. at 170, 98 S.Ct. 2674 ; United States v. Lull , 824 F.3d 109, 115–16 (4th Cir. 2016). And here too, the defendant must provide facts—not mere conclusory allegations—indicating that the officer subjectively acted with intent to mislead, or with reckless disregard for whether the statements would mislead, the magistrate. See United States v. Colkley , 899 F.2d 297, 301 (4th Cir. 1990).

Finally, the defendant must show materiality—that is, that the false statements were "necessary to the finding of probable cause." Franks , 438 U.S. at 156, 98 S.Ct. 2674 ; United States v. Wharton , 840 F.3d 163, 168 (4th Cir. 2016). A district court may not hold a Franks hearing where, after stripping away the allegedly false statements, the truthful portions of the warrant application would still support probable cause. This limitation reflects the ultimate purpose of Franks : "to prevent the admission of evidence obtained pursuant to warrants that were issued only because the issuing magistrate was misled into believing that there existed probable cause." United States v. Friedemann , 210 F.3d 227, 229 (4th Cir. 2000).

We note that the Federal Rules require certain motions, including a motion for a Franks hearing, to be made before trial "if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3)(C) ; see White , 850 F.3d at 673. On appeal, the Government argues that the basis for making this preliminary showing was reasonably available to Moody before trial. Like the district court, however, we decline to decide whether the motion was timely and instead affirm on the merits.

B.

As in his motion below, Moody argues on appeal that Shelkey’s affidavit falsely suggested that he was physically present for the controlled purchase on March 24. Because the informant and Shelkey both testified at trial that Moody arranged the transaction but was not physically present at the point of sale, Moody argues that the affidavit was false, and intentionally (or at least recklessly) so.

According to Moody, the following sentence from Shelkey’s affidavit should be read to say that he was present for "selling" the heroin: "During this controlled purchase, MOODY and other co-conspirators (two unidentified black females) were observed leaving from 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre arranged location and selling the Informant heroin." J.A. 446. As the district court recognized, there is ambiguity here. The language says that three people (Moody and his two conspirators) did three things: left the house, traveled to the buy location, and sold heroin.

The affidavit lacks precision regarding whether all three people did all three things, or whether the...