United States v. Wharton

• Decision Date: 21 October 2016
• Docket Number: No. 15-4103,15-4103
• Citation: 840 F.3d 163
• Parties: United States of America, Plaintiff–Appellee, v. Joeann Wharton, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

840 F.3d 163

United States of America, Plaintiff–Appellee,

v.Joeann Wharton, Defendant–Appellant.

No. 15-4103

United States Court of Appeals, Fourth Circuit.

Argued: September 20, 2016

Decided: October 21, 2016

ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Paul Nitze, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Judson T. Mihok, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Motz

wrote the opinion, in which Judge Wilkinson and Judge Harris joined.

DIANA GRIBBON MOTZ

, Circuit Judge:

Joeann Wharton appeals her convictions of conspiracy, making a false statement, theft, and embezzlement, all in connection with her unlawful receipt of government benefits. She principally contends that the district court should have suppressed evidence found at her house.¹ Wharton maintains that, in the affidavit supporting the search warrant for the house, the affiant recklessly omitted material, exculpatory facts. Because the inclusion of the omitted information would not have defeated probable cause for the search, that information was not material. Accordingly, we affirm the judgment of the district court.

I.

After their mother's death in 2002, Wharton's two granddaughters, Chaqueira Wharton and Essence Wharton, moved in with her. Wharton applied for, and received, Social Security survivors' benefits on their behalf, obligating her to spend those funds for their care. In July 2012, the Government learned that the girls were not receiving the benefits, and since 2009 had not even lived with Wharton in her house on Utrecht Road in Baltimore, Maryland. The Government then launched an investigation of Wharton's use of the survivors' benefits. Special Agent Mark Gray of the Social Security Administration's Office of the Inspector General headed that investigation.

As part of his investigation, Agent Gray reviewed state and federal records and interviewed Wharton's two granddaughters, Chaqueira Wharton and Essence Wharton, Wharton's children LaSean Wharton and Tasha Muriel, Wharton's husband John Wharton, and Wharton herself. Agent Gray's investigation uncovered other evidence of Wharton engaging in potentially fraudulent activity involving government benefits. On January 31, 2013, a federal grand jury indicted Wharton on two counts of theft of government property in violation of 18 U.S.C. § 641

and 42 U.S.C. § 1383a(a)(3).

Five months later, on June 27, 2013, the grand jury issued a sealed superseding indictment, which was unsealed on July 10, 2013. The superseding indictment charged both Joeann Wharton and her husband, John Wharton, with multiple counts involving conspiracy to embezzle, embezzlement, and making false statements to obtain government benefits. On July 1, 2013, while the superseding indictment remained sealed, Agent Gray sought a search warrant of the Utrecht Road house to obtain evidence about John Wharton. In the affidavit Agent Gray offered in support of the search warrant, he set forth substantial evidence of criminal activity by John Wharton and asserted that John Wharton and Joeann Wharton lived together at the Utrecht Road house. Upon consideration of the affidavit, a magistrate judge issued the search warrant. Agent Gray and another agent executed it the following day, uncovering a number of documents relevant to the charges against both John Wharton and Joeann Wharton.

Prior to trial, Joeann Wharton moved to suppress all the evidence obtained in that search. She argued that Agent Gray had recklessly omitted material exculpatory evidence from the affidavit, namely that John Wharton lived only in the basement of the house. The district court held a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)

, to consider the question. After a two-day evidentiary hearing, and an additional day of oral argument, the district court largely denied the suppression motion.²

A lengthy trial followed at which the district court admitted evidence obtained in the search of the common areas of the house. The jury convicted Joeann Wharton of Social Security fraud in violation of 42 U.S.C. § 1383a(a)(3)

, and convicted both Joeann Wharton and John Wharton of conspiracy to embezzle money from the United States in violation of 18 U.S.C. § 371, two counts of making false statements to the SSA in violation of 42 U.S.C. § 1383a(a)(2), and two counts of embezzlement from the United States in violation of 18 U.S.C. § 641.

II.

The critical information that Joeann Wharton maintains Agent Gray recklessly omitted from his affidavit were facts demonstrating that she and her husband “occupied different parts of the house.” Brief of Appellant at 23. She contends that the omission of these facts rendered Agent Gray's affidavit materially false in violation of the Fourth Amendment. See Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987)

(“Plainly, if the officers had known ... that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent's apartment from the scope of the requested warrant.”).

The Utrecht Road house occupies three levels: a basement; a main first floor; and an upstairs second floor. The second floor contains two bedrooms and a bathroom. The first floor consists of a kitchen, a living/dining area, and the front door to the house. The basement consists of a bedroom, a separate entrance, a half-bath, a refrigerator, and a microwave. An interior door connects the first floor to the basement.

For the most part, Agent Gray's ten-page, twenty-two paragraph affidavit seeking a warrant to search the Utrecht Road house for evidence of John Wharton's criminal activity outlines the nature of that activity. Agent Gray also made the following representations as to the living arrangement within the house: 1) he and another agent interviewed John Wharton and Joeann Wharton together at the Utrecht Road house; 2) at this interview, “the Whartons stated that they had been married continuously for 43 years, and that they lived together” in the house; 3) the Baltimore Gas & Electric Company provides power to the entire house through an account in John Wharton's name; 4) the Dish Network provides television service to the entire house through an account listing both John Wharton and Joeann Wharton as authorized users; and 5) Agent Gray knew “from interviews in June 2013 with Lesean [sic] Wharton and his sister Tasha Muriel that John and Joeann are currently living” in the house. Joeann Wharton did not (and does not) challenge any of these facts. What she contends is that Agent Gray recklessly omitted from his affidavit other material information indicating that she and John occupied distinct areas of the house.

After considering the evidence the parties produced at the Franks

hearing, the district court found that LaSean Wharton had told Agent Gray that his parents slept in separate bedrooms but shared a kitchen and common areas. The court found that Tasha Muriel had told Agent Gray that both of her parents lived in the Utrecht Road house, but John Wharton lived in the basement while Joeann Wharton occupied the upstairs floors. According to Muriel, although John Wharton would occasionally visit the kitchen and dining areas, he did so by invitation only, mostly at family gatherings. The district court further found that Wharton's granddaughters had told Agent Gray that they needed to knock on an interior door to the basement, which typically remained locked, on the rare occasions they went to their grandfather's part of the house. Finally, the court found that some of Agent Gray's notes and the documents he obtained during his investigation indicated that Joeann Wharton lived separately from John Wharton in the house. The district court concluded that although Agent Gray recklessly omitted this information from his affidavit, because it was not material, its omission did not violate the Fourth Amendment.³

III.

With these facts in mind, we turn to the legal question before us—whether the district court erred in finding that the omissions in the affidavit were not material, and so denying Wharton's suppression motion. When considering a district court's ruling on a suppression motion, “we review factual findings for clear error and legal determinations de novo.” United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010)

. We “construe the evidence in the light most favorable to the prevailing party,” here the Government, “and give due weight to inferences drawn from those facts by resident judges and law enforcement officers.” Id.(internal quotation marks omitted).

The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV

. The district court properly recognized that Franks governs Wharton's challenge.⁴ Defendants may bring Franks challenges both when an affidavit contains a false statement and when the affiant has omitted material facts from the affidavit. United States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016). To establish a Franks violation, a defendant must prove that the affiant either intentionally or recklessly made a materially false statement or that the affiant intentionally or recklessly omitted material information from the affidavit. Id. Thus, Franks requires proof of both intentionality and materiality. Id. We need only discuss the materiality requirement here.

An omission is material if it is “necessary to the [neutral and disinterested...