United States v. Wharton
| Decision Date | 12 August 2014 |
| Docket Number | Criminal No. ELH-13-0043 |
| Court | U.S. District Court — District of Maryland |
| Parties | UNITED STATES OF AMERICA, v. JOEANN WHARTON JOHN WHARTON |
This case involves allegations that defendants Joeann and John Wharton engaged in criminal misconduct from 1996 to 2012, in connection with their improper receipt of various types of Social Security benefits. Joeann Wharton was initially indicted on January 31, 2013 (ECF 1), and charged in two counts: theft and conversion of SSI program benefits, in violation of 18 U.S.C. § 641 (Count One), and fraud in connection with receipt of Social Security disability benefits, under 42 U.S.C. § 1383a(a)(3) (Count Two). In an eight-count Superseding Indictment filed on June 27, 2013 (ECF 19), Ms. Wharton's husband, John Wharton, was added as a defendant, and additional charges were included, all related to or arising from the alleged unlawful receipt of various types of Social Security benefits.
The Whartons were married in 1970, when Ms. Wharton was 16 years of age and Mr. Wharton was 29. Although they have never divorced, the status of their marriage and the details of their living arrangements during the relevant time period are central to the case and have been vigorously contested.
Several motions are pending.1 Ms. Wharton has moved to suppress evidence recovered during execution of a search warrant on July 2, 2013, for a single family, two-story row home owned by defendants and located on Utrecht Road in Baltimore. Ms. Wharton contends that the warrant was obtained in violation of her rights under the Fourth Amendment to the United States Constitution. Defendants have also moved to suppress statements they made to two agents from the Social Security Administration's Office of the Inspector General during an interview at the Whartons' home on August 27, 2012. They argue that the statements were made involuntarily and that introduction of the statements at trial would violate their rights under the Fifth Amendment to the United States Constitution.
A number of filings by the parties are relevant to the issues at hand. In particular, Ms. Wharton filed a Motion to Suppress Statements (ECF 9); a Consolidated Pretrial Motion (ECF 37); a Reply in support of the Consolidated Pretrial Motion (ECF 60); a Prehearing Memorandum (ECF 111); and a Statement of Points and Authorities (ECF 125). In addition to adopting all of Ms. Wharton's motions (ECF 34), Mr. Wharton also filed a Motion to Suppress Statements (ECF 35); a Reply in support of his Motion to Suppress (ECF 61); and a Supplemental Brief regarding the August 27, 2012 statements (ECF 126). The government's filings are at ECF 43, ECF 64, and ECF 114.
The Court conducted an evidentiary hearing on June 2 and June 3, 2014. The Court heard testimony from the defendants' adult children, Lasean Wharton ("Lesean")2 and Tasha Wharton Muriel, and the defendants' granddaughters, Chaquiera Wharton, now 18, and Essence Wharton, now 21, as well as Special Agent Mark Gray from the Social Security Administration's Office of the Inspector General. Oral argument was presented on July 1, 2014.
This Memorandum Opinion reflects the Court's findings of fact and conclusions of law, in accordance with Fed. R. Crim. P. 12(d).
A. Search Warrant
On July 1, 2013, the government applied for a search warrant for defendants' Utrecht Road home, seeking evidence relating to crimes allegedly committed by Mr. Wharton. At that point, the Superseding Indictment had been filed but not yet unsealed. See ECF 19, 23, 24. Agent Gray submitted an Affidavit in support of the search warrant application. ECF 114-1 ("Gray Aff.") ¶ 3. Attachment B to the warrant application described the items to be seized, which were items relating to Mr. Wharton's alleged use of a false identity (i.e., the identity of James Wharton) to obtain Social Security benefits. The warrant application did not seek items belonging to Joeann Wharton. Magistrate Judge Stephanie Gallagher approved the search warrant application on the same day. ECF 114-1. The search warrant was executed the next day, July 2, 2013. According to the defense, the government searched all three floors of theWharton home and seized documents on the first and second floors that related to both John and Joeann Wharton. ECF 111 at 3.
Ms. Wharton claims that Agent Gray omitted material information from his Affidavit that, if included, would have defeated probable cause to search the first and second floors of the house. See Franks v. Delaware, 438 U.S. 154 (1978). In particular, Ms. Wharton maintains that she and Mr. Wharton, although legally married, were estranged and occupied separate areas of the house, with Ms. Wharton living on the first and second floors of the house and having her own bedroom, and Mr. Wharton living in the basement. Moreover, Ms. Wharton insists that the government, including Agent Gray, was aware of the Whartons' living arrangements, and intentionally or recklessly omitted information about the living arrangements from Agent Gray's Affidavit. According to Ms. Wharton, Judge Gallagher would not have found probable cause to search the first and second floors of the house had the Affidavit included the omitted information.3
Before addressing the parties' contentions, I pause to review the law that frames a challenge to a facially valid search warrant.
"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). However, the Supreme Court established a narrow exception to this rule in the seminal case of Franks v. Delaware, 438 U.S. 154 (1978). Franks established that, under limited circumstances, an accused is entitled to an evidentiary hearing concerning the veracity of statements in an affidavit. In order to obtain an evidentiary hearing regarding the integrity of an affidavit, a defendant must first make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit." Id. at 155-56. As the Supreme Court said, this showing "must be more than conclusory," and Franks, 438 U.S. at 171; see United States v. Shorter, 328 F.3d 167, 170 (4th Cir. 2003). So, "where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination," it is not enough for a Franks hearing. Franks, 438 U.S. at 170.
Second, the false information must be essential or material to the probable cause determination. Id. at 171-72. In other words, the defendant must make an initial showing that, without those false statements, the affidavit cannot support the finding of probable cause. United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011); United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011). On the other hand, if the allegedly false statements are not necessary for the probable cause finding, the accused is not entitled to a Franks hearing. Franks, 438 U.S. at 155-156; see also United States v. Doyle, 650 F.3d 460, 468 (4th Cir. 2011) ().
Of relevance here, Franks also applies when an affiant omits material facts "'with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.'" United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (citation omitted). See United States v. Cioni, 649 F.3d 276, 286 (4th Cir. 2011) (). But, "[m]erely identifying factual omissions is insufficient." Clenney, 631 F.3d at 664. To be material under Franks, an omission must be "necessary to the finding of probable cause." Franks, 438 U.S. at 156; Colkley, 899 F.2d at 301. So, "to obtain a Franks hearing, the defendant must show that the omissions were ' designed to mislead, or . . . made in reckless disregard of whether they would mislead' and that the omissions were material, meaning that their 'inclusion in the affidavit would defeat probable cause.'" Clenney, 631 F.3d at 664 (quoting Colkley, 899 F.2d at 301) (emphasis in Clenney). In Colkley, the Fourth Circuit said, 899 F.2d at 301: "For an omission to serve as the basis for a hearing under Franks, it must be such that its inclusion in the affidavit would defeat probable cause . . . ."
If the defendant is granted a Franks hearing and the defense establishes the affiant's material perjury or recklessness by a preponderance of the evidence, the offending portion of the warrant "'must be voided' and evidence or testimony gathered pursuant to it must be excluded." Colkley, 899 F.2d at 300 (quoting Franks, 438 U.S. at 156). In other words, the defense must establish, through testimony and evidence, the facts it proffered in order to justify the Franks hearing. If those facts are established by a preponderance of the evidence, the evidence gathered pursuant to the invalid portion of the warrant must be excluded.
Several cases elucidate the Franks analysis. In Colkley, 899 F.2d 297, a bank robbery case, the defendant, Johnson, complained that the district court should have suppressed his post-arrest incriminating statements, because the affidavit in support of the arrest warrant did not recount that six eyewitnesses who were shown a photospread that included Johnson failed to identify Johnson as one of the robbers. In addition, he complained because the agent based the composite height description of the vault robber, who was allegedly Johnson, on the testimony of only one witness, disregarding other witnesses who described the vault robber as shorter than as depicted in the affidavit. On this basis, Johnson requested and actually...
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