United States v. Veloz, No. 17-2136

• Decision Date: 24 January 2020
• Docket Number: No. 17-2136
• Citation: 948 F.3d 418
• Parties: UNITED STATES of America, Appellee, v. Danny VELOZ, a/k/a Maestro, a/k/a Joil Rivera, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

948 F.3d 418

UNITED STATES of America, Appellee,

v.Danny VELOZ, a/k/a Maestro, a/k/a Joil Rivera, Defendant, Appellant.

No. 17-2136

United States Court of Appeals, First Circuit.

January 24, 2020

Mark W. Shea, with whom Shea & LaRocque, LLP, Cambridge, MA, was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Barron, Selya, and Boudin, Circuit Judges.

BARRON, Circuit Judge.

Danny Veloz challenges on various grounds his 2017 conviction for conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c), for which he received a prison sentence of life. Finding no merit to his challenges, we affirm.

I.

Veloz's conviction stems from his alleged role as the mastermind of a Massachusetts-based scheme to kidnap drug dealers and hold them for ransom. On July 23, 2012, a victim of the scheme, Manuel Amparo, alerted law enforcement that he had just escaped from having been kidnapped. Three men were initially arrested in connection with that crime, one of whom, Henry Maldonado, began cooperating with the authorities.

Maldonado informed the authorities that Veloz was the head of the kidnapping crew. Maldonado told them that Veloz would attach GPS devices to the cars of potential kidnapping victims in order to track their movements. Once Veloz learned a victim's typical driving routine, Maldonado also recounted, Veloz would instruct his crew to abduct the victim and hold the victim for ransom.

Further investigation revealed that Amparo had a GPS device unknowingly attached to his car. The Federal Bureau of Investigation ("FBI") then secured a warrant to search Veloz's residence from a United States magistrate judge. The search turned up, among other things, computers and cell phones related to the scheme.

The operative indictment was handed up on September 27, 2012, by a grand jury in the District of Massachusetts. The indictment charged Veloz and six co-defendants with conspiracy to commit kidnapping in violation of 18 U.S.C. § 1201(c). Veloz's co-defendants each pleaded guilty. Veloz chose to proceed to trial, which commenced on August 7, 2017. The jury returned a guilty verdict against Veloz on August 21, 2017, and the District Court sentenced Veloz to life in prison on November 17, 2017. That same day, Veloz timely filed a notice of appeal.

II.

Veloz first challenges the District Court's denial of his motion to suppress the evidence that law enforcement authorities seized from his apartment. Veloz argues that the District Court erred in denying this motion because the application for the warrant that led to the seizure failed to establish the requisite probable cause.

When reviewing "the denial of a suppression motion, we assess the district court's factfinding for clear error, and review legal questions (such as probable cause ...) de novo." United States v. Ackies, 918 F.3d 190, 197 (1st Cir.), cert. denied, ––– U.S. ––––, 140 S.Ct. 662, ––– L.Ed.2d ––––, 2019 WL 6833480 (2019). We employ a "totality-of-the-circumstances analysis" to see if the government established "a fair probability that contraband or evidence of a crime will be found in a particular place," Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and "accord ‘considerable deference to reasonable inferences [that] the [issuing judge] may have drawn from the attested facts,’ " United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir. 2011) (alteration in original) (quoting United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996) ).

Veloz's first ground for challenging the denial of his motion to suppress focuses on the affidavit that accompanied the application that FBI Special Agent John Orlando ("SA Orlando") submitted for the search warrant. The affidavit relied largely on information from a confidential informant. Veloz contends that, because the affidavit did not describe the informant as having provided credible information to law enforcement in the past, the warrant was not supported by probable cause. We disagree.

"[A]n informant's tip can establish probable cause even though the affidavit does not contain information about the informant's past reliability," United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005), as a "probable cause finding may be based on an informant's tip so long as the probability of a lying or inaccurate informer has been sufficiently reduced," id. at 69. "We apply a ‘nonexhaustive list of factors’ to examine the affidavit's probable cause showing" when it is based on a tip. United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) (quoting Tiem Trinh, 665 F.3d at 10 ). These factors include:

(1) whether the affidavit establishes the probable veracity and basis of knowledge of persons supplying hearsay information; (2) whether an informant's statements reflect first-hand knowledge; (3) whether some or all of the informant's factual statements were corroborated wherever reasonable or practicable (e.g., through police surveillance); and (4) whether a law enforcement affiant assessed, from his professional standpoint, experience, and expertise, the probable significance of the informant's provided information.

Id.

In this case, the first two factors that we have set forth above point in favor of finding the tip reliable. SA Orlando's affidavit represented that the confidential informant had provided a detailed description of the illegal scheme's operations and Veloz's role in them. His affidavit also made clear that the confidential informant's description of those operations was based, in part, on his having been inside Veloz's residence.

The third factor further indicates that the tip in this case was reliable because SA Orlando's affidavit identified a number of key respects in which the informant's tip had been corroborated. For example, his affidavit stated that the apartment building that the informant had identified as Veloz's place of residence had a mailbox in it with Veloz's name on it; that law enforcement had observed a car parked in front of that residence -- a brown Cadillac -- that matched the description that the informant had previously given of Veloz's vehicle; and that FBI agents had observed a red van that belonged to one of Veloz's co-conspirators parked outside of that same apartment building. Moreover, an attachment to the warrant application stated that, in accord with the confidential informant's claim that Veloz had used GPS devices to monitor his victims, the investigation into the July 23, 2012, kidnapping revealed that a GPS device had been attached to the victim's car.

The fourth factor, which relates to the experience of the law enforcement officer seeking the warrant, reinforces the reliability of the tip here. SA Orlando represented in his affidavit that the information that he had obtained from the confidential informant accorded with what he had learned from investigating kidnappings in the nearby area over the course of the previous year. See Zayas-Diaz, 95 F.3d at 111 (explaining that a search warrant application is strengthened when "a law-enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise").

Finally, in this case, "the [informant] was known to the police and could be held responsible if his assertions proved inaccurate or false." United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (citing Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ). Thus, this fact provides further support for a finding that the confidential informant's tip was reliable. Id.

Veloz has a fallback argument in challenging the District Court's denial of his motion to suppress. He contends that the District Court erred by mistakenly finding that SA Orlando's affidavit stated that the informant "admitted to his role in the kidnapping." But, because the warrant application establishes the reliability of the confidential informant's tip whether or not the informant was himself involved in the kidnapping scheme, we may affirm the District Court's probable cause ruling on that basis. See Ackies, 918 F.3d at 197.¹

III.

Veloz's next set of challenges also relies on what he claims are deficiencies in the search warrant application. Here, however, Veloz does not contend that the deficiencies required the suppression of the evidence at issue. Rather, he contends that due to what he describes as "omissions and misstatement[s] in the search warrant affidavit," the District Court erred in refusing his pretrial motion to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Thus, he contends, the conviction must be vacated for this reason.

A Franks hearing affords a defendant an opportunity to show, "by a preponderance of the evidence," that the warrant application "contains false statements or omissions, made intentionally or with reckless disregard for the truth, and that a finding of probable cause would not have been made without those false statements or omissions." United States v. Arias, 848 F.3d 504, 510-11 (1st Cir. 2017). To be entitled to a Franks hearing, the defendant must first make:

a "substantial preliminary showing" of the same two requirements that he must meet at the hearing — that "a false statement or omission in the affidavit was made knowingly and intentionally or with reckless disregard for the truth" and that the false statement or omission was "necessary to the finding of probable cause."

Id. at 511 (quoting United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015) ).

Veloz contends that the District Court erred in denying his motion for a Franks hearing because he had made the required substantial preliminary showing that SA Orlando knew and omitted key facts from his affidavit about Maldonado's criminal history, previous addiction to heroin

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