United States v. Owens , 917 F.3d 26 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 16-1945
UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY OWENS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.
Sarah A. Churchill, with whom Nichols & Churchill, P.A., was
on brief, for appellant.
John M. Pellettieri, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Sangita K. Rao,
Attorney, Appellate Section, Criminal Division, John P. Cronan,
Acting Assistant Attorney General, Criminal Division, Matthew S.
Miner, Deputy Assistant Attorney General, Criminal Division,
Halsey B. Frank, United States Attorney, Darcie McElwee, Assistant
United States Attorney, and James W. Chapman, Assistant United
States Attorney, were on brief, for appellee.
February 26, 2019
TORRUELLA, Circuit Judge. This is a case about a double
life, an attempted uxoricide, and excellent police work.
Defendant-Appellant Gregory Owens ("Owens") was convicted of
interstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)
and (b)(2); and discharge of a firearm during and in relation to
a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
He was sentenced to life in prison. On appeal, Owens challenges
the sufficiency of evidence supporting his convictions, the
reasonableness of his sentence, and the district court's denial of
his pretrial motions seeking to suppress evidence and dismiss the
indictment on double jeopardy grounds. After careful review, we
find Owens's convictions supported by sufficient evidence, his
sentence substantively reasonable, and the motions for suppression
and dismissal properly denied. Seeing no reason to vacate Owens's
convictions or sentence on the grounds that he has presented, we
affirm.
I. BACKGROUND
A. Factual Background
1. The Home Invasion
In the early morning hours of December 18, 2014, at
approximately 2:45 a.m., Carol Chabot ("Carol") awoke to a
shuffling noise coming from the downstairs of her two-story house
in Saco, Maine. Sensing something was not right, she woke her
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husband, Steve Chabot ("Steve"), who lay beside her. Steve,
however, did not hear the noise but told Carol "it's probably
Rachel" who caused the noise — with "Rachel" being Rachel Owens
("Rachel"), a family friend who was staying the night. Then Steve
rolled over to go back to sleep. Undeterred, Carol got out of bed
to investigate.
As she walked down the upstairs hallway, toward the spare
bedroom where Rachel was staying, Carol heard a second noise --
this time the loud sound of glass shattering. With haste, she
looked into the spare bedroom and noticed Rachel was sound asleep
in bed. Steve also heard the loud noise and hurried out of bed to
check what was going on. He peeked out of his bedroom towards the
staircase and saw an intruder racing up the stairs with a gun in
his right hand. The intruder, later identified as Owens, was
approximately 5 feet 9 inches tall with a slim, athletic build; he
wore dark clothing, gloves, and a black mask with a single opening
at the eyes and glasses protruding from it.
Steve shouted an expletive at the intruder and dashed
back into the master bedroom. Carol, who did not see the intruder
but saw a look of horror on her husband's face, ran into a third
bedroom used as a home office and barricaded herself inside. The
intruder followed her and tried to force his way into the room,
but, after a few failed attempts, suddenly stopped. He then walked
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toward the room where Rachel lay and fired at her three times,
hitting her in the head, arm, and torso.
Having heard the gun shots, Steve peeked out of the
master bedroom again. He saw the intruder about two feet away,
heading towards him. They looked at each other face to face.
Steve immediately slammed the door shut and held his arm against
it. Undaunted, the intruder kicked the door in, looked inside
through the now slightly-opened doorway, and fired shots through
the door, striking Steve in the arm, neck, and rib area.1 The
intruder then abandoned the Chabot residence. He did not take any
valuables with him.
2. The Crime Scene
In response to a 911 call from Steve Chabot received at
2:47 a.m., police arrived at the Chabot residence. During their
investigation of the crime scene, officers learned that the
intruder gained entry into the garage through a door located in
the back of the house, and into the interior of the Chabot
residence through a door located in the garage that led to the
kitchen. The upper part of this garage door was double-paned
glass, sectioned into nine squares by wood framing. The intruder
1 Both Rachel and Steve survived the incident, but it left Rachel
with a bullet lodged in her brain and severely limited use of her
right hand.
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broke the outer pane of the lower left square of glass, leaving
glass shards scattered on the floor and separating the inner pane,
which remained intact, from the door, thereby creating a gap that
allowed the intruder to reach in and unlock the deadbolt. Officers
retrieved human hair from the area between the shattered outer
pane of glass and the inner pane of glass, and swabbed the area
for DNA.
Police officers also recovered numerous .9mm shell
casings stamped "WCC 1987," later identified as 27-year-old
Western Cartridge Company casings, from the second floor of the
house.
Finally, while inspecting the periphery of the Chabot
residence, officers found a footprint in the damp dirt outside the
first-floor window near the garage and proceeded to make a cast of
it.
3. Search, Intervention, and Interview
At around 5:00 a.m., Maine police officers informed New
Hampshire law enforcement of the shooting at the Chabot residence.
Two New Hampshire police officers, Randy Dyer ("Officer Dyer") and
Keith Lee ("Officer Lee"), were instructed to visit Owens's
residence in the town of Londonderry to verify the presence of his
two vehicles. They were, however, instructed not to make contact
with Owens.
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At approximately 5:20 a.m., the two police officers
arrived at Owens's neighborhood and parked their car at the
beginning of Winthrop Road, the dead-end street where Owens's
residence was located. Under the cover of darkness, they began
heading down Winthrop Road toward the house. At around 5:24 a.m.,
before the officers could reach their destination, a state trooper
patrol car with flashing blue lights drove near the Owens
residence. Contemporaneously, a light visible from the house's
front windows went off, making the inside of the house go dark.
The officers stopped the trooper and instructed him to turn off
the flashing lights. After this, the officers, now accompanied by
the trooper, continued their approach towards the residence. With
Officer Lee and the trooper providing cover, Officer Dyer
eventually made his way into the driveway, where he placed his
hand on Owens's Hyundai Santa Fe SUV ("Owens's vehicle") and
noticed its hood and grill were warm.2 The officers and trooper
then retreated back down Winthrop Road to the staging area.
Several minutes after arriving at the staging area, the
officers saw Owens's vehicle exit Winthrop Road and proceeded to
2 Owens's vehicle was parked on the upper part of his driveway,
with its nose facing the garage. The driveway is easily observable
and accessible to anyone passing by in the neighborhood. It is
not enclosed in any way, nor does it have any fences or signs
warning visitors to stay away.
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follow it. The vehicle stopped at a nearby Circle K store, where
Owens got out. The officers approached Owens and told him that
his wife had been shot. Owens acted surprised and complained of
chest pains, after which the officers requested medical attention
for him. While waiting for the medical personnel to arrive, the
officers saw blood, a pair of boots with wet stains, and a computer
hard drive inside Owens's vehicle. Owens agreed to go with the
officers to the police station for a videotaped interview (the
"police interview") after receiving medical assistance.
During the police interview, Owens provided a detailed
account of his night. Specifically, he explained, albeit with
some variation, that, after speaking to his wife Rachel at around
9:15 p.m., he went to bed, but got up a few times to work on his
computer on a proposal for a military consultancy contract with
the Ukrainian government that was due the next day. In particular,
Owens claimed that at around 2:30 a.m. –- fifteen minutes before
the Chabot residence was broken into -- he sent an e-mail to one
of his colleagues regarding a tweak to the proposal.
Owens also admitted to leaving his home on multiple
occasions throughout the course of the night and early morning:
first, to Circle K at around 12:30 a.m. to get a soda and
cigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get
coffee and donuts; and finally, to Circle K again at around
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6:30 a.m. to grab another cup of coffee, at which point he came in
contact with officers Dyer and Lee. Furthermore, he informed the
interviewing officers that he was a military retiree and had what
he described as an "arsenal" of weapons in his house. After
collecting some evidence (e.g., DNA samples from his hands and
mouth, clothes, etc.), the police released Owens from custody.
4. The Double-Life and Motive
To fully understand the motive behind Owens's crime, we
must look back to the preceding decade. In 2005, Owens met Betsy
Wandtke ("Wandtke"), a woman from Wisconsin, in a flight back from
a hunters' rights convention, which they had both attended.3 About
three years later, their relationship turned into an affair. As
the affair progressed, Owens and Wandtke began to spend more time
together -- up to ten days a month. Owens considered Wandtke his
"lover" and his "life." He represented to her that he was in the
process of divorcing Rachel, which Wandtke was unable to
independently confirm, given that it was not true. To partly
explain his long absences when he was actually with Rachel in New
Hampshire, Owens told Wandtke that his work as a military
consultant required him to travel and take part in covert missions
in places like Afghanistan.
3 From the moment they met, Wandtke was aware of Owens's marriage.
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While the affair continued, in or about 2011, Rachel
began to develop early-onset dementia. The responsibility of
having to care for her burdened Owens, but did not deter him from
continuing his affair with Wandtke. Then, on December 3, 2014,
the affair came to an abrupt end. Due to an inadvertent call from
Owens's mobile phone, Wandtke discovered that Owens was leading a
double-life -- his marriage with Rachel continued in regular
course. Wandtke confronted Owens about it and told him their
relationship was over.4 After a failed attempt to convince Wandtke
that she misunderstood the conversation she overheard, Owens
promised Wandtke he was going to make it up to her.
A mere fifteen days after the breakup, the events at the
Chabot residence unfolded. Furthermore, in the days following the
shooting, Owens contacted Wandtke via e-mail and told her that he
was being "targeted" because of his work and instructed her to "go
dark" and not tell anyone about their relationship. Then, on
December 31, 2014 -- thirteen days after the incident at the Chabot
residence and with his wife still recovering from a gunshot wound
4 Owens was with Wandtke in Wisconsin a little over a week before
their breakup. They had plans to celebrate Thanksgiving together.
Notwithstanding, the weekend before the holiday, Owens suddenly
cancelled their plans, leaving Wisconsin for a supposed emergency
covert mission in Afghanistan. Then, on December 3, 2014, Wandtke
found out that Owens was not in Afghanistan, but rather with Rachel
in New Hampshire, as the result of the accidental call made from
Owens's cell phone.
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to the head -- Owens unexpectedly arrived at Wandtke's doorstep
with a limousine and roses. Owens and Wandtke celebrated New
Year's Eve and spent time together during the first week of 2015.
On January 4, 2015, Owens returned to New Hampshire. Shortly
thereafter, on January 11, 2015, Owens was arrested.
B. Procedural Background
On March 11, 2015, a grand jury indicted Owens on two
counts: interstate domestic violence (Count One) and discharge of
a firearm during and in relation to a crime of violence (Count
Two). On July 6, 2015, Owens filed a motion to dismiss the
indictment on double jeopardy grounds; a motion to suppress
evidence gathered as the result of the entry into his property,
namely, into his driveway; and, a motion to suppress search
warrants issued and executed during the investigation for his
vehicles and house, electronic items (e.g., an iPhone, Magellan
GPS, etc.), and an external hard drive and a laptop computer in a
Swiss Army case.5 The district court held an evidentiary hearing
5 Owens also moved to suppress DNA evidence obtained from a blood
sample collected at the Chabot residence, and from a buccal swab
law enforcement performed on his cheeks during the police
interview. Owens, however, eventually withdrew his motion as to
the blood sample collected from the Chabot residence.
Notwithstanding, we note that a heading in his brief makes specific
reference to the collection of the blood sample, which may be
interpreted to suggest his intent to still seek suppression of the
DNA test results obtained therefrom. The Government attributes
Owens's reference to the collection of the blood sample in the
heading to human error. It asserts that the section with this
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on Owens's motion to dismiss and motions to suppress. Evidence
was presented, including the testimony of the officer who touched
Owens's vehicle, as well as that of the officers who drafted the
affidavits on which the search warrants were based. Unpersuaded,
the district court denied Owens's motions to dismiss and to
suppress.
A ten-day jury trial followed. The jury found Owens
guilty of both counts. For these charges, the district court
sentenced Owens to life imprisonment (240 Months on Count One and
Life on Count Two). Owens timely appealed.
II. ANALYSIS
A. Motion to Suppress Evidence Gathered as a Result of Officer
Dyer's Entry into the Driveway
We review a district court's denial of a motion to
suppress scrutinizing its factual findings for clear error and its
legal conclusions de novo. United States v. Flores, 888 F.3d 537,
543 (1st Cir. 2018) (citations omitted); United States v. Brown,
heading actually deals with Owens's challenge to a search warrant
affidavit that mentions DNA evidence obtained from Owens's police
interview buccal swab. See infra at 21-24. Based on the section's
content, we agree. Neither there nor anywhere else in his brief
does Owens develop an argument for suppression of the DNA test
results obtained from the collection of a blood sample at the
Chabot residence. Accordingly, Owens must "forever hold [his]
peace" with the Government's use of this evidence. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal
quotation marks omitted).
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510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant
"must show that no reasonable view of the evidence supports the
district court's decision." United States v. Dunbar, 553 F.3d 48,
55 (1st Cir. 2009) (citations and internal quotation marks
omitted).
Owens argues that Officer Dyer's entry into his driveway
and touching of his vehicle parked therein constituted an illegal
search because the driveway formed part of his house's curtilage
and, therefore, was protected from warrantless searches by the
Fourth Amendment. Accordingly, he sustains that the district court
erred in denying the suppression of evidence obtained as a result
of the search, namely, any reference to the temperature of his
vehicle's hood and grill.
The Fourth Amendment provides in relevant part that the
"right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated." U.S. Const. amend. IV. "When the Government obtains
information by physically intruding on persons, houses, papers, or
effects, a search within the original meaning of the Fourth
Amendment has undoubtedly occurred." Florida v. Jardines, 569
U.S. 1, 5 (2013) (citations and internal quotation marks omitted).
For Fourth Amendment purposes, a house's curtilage is
"the area immediately surrounding and associated with the home."
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Id. at 6 (citation and internal quotation marks omitted). "The
protection afforded [to a house's] curtilage is essentially a
protection of families and personal privacy in an area intimately
linked to the home, both physically and psychologically, where
privacy expectations are most heightened." California v. Ciraolo,
476 U.S. 207, 212–13 (1986). Therefore, "[w]hen a law enforcement
officer physically intrudes on the curtilage to gather evidence,
a search within the meaning of the Fourth Amendment has occurred.
. . . Such conduct thus is presumptively unreasonable absent a
warrant." Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)
(citation omitted).
In determining whether a specific part of a house falls
within its curtilage, we consider:
[1] the proximity of the area claimed to be curtilage to
the home, [2] whether the area is included within an
enclosure surrounding the home, [3] the nature of the
uses to which the area is put, and [4] the steps taken
by the resident to protect the area from observation by
people passing by.6
Brown, 510 F.3d at 65 (alterations in original) (quoting United
States v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United
States v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,
6 These factors are eponymously called the Dunn factors after the
Supreme Court's seminal opinion in United States v. Dunn, 480 U.S.
294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st
Cir. 2017).
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however, we need not address these factors given that, even
assuming that the driveway formed part of the house's curtilage,
Officer Dyer faced exigent circumstances when he entered the
driveway and placed his hand on Owens's vehicle, which
circumscribes his warrantless search within the bounds of the
Fourth Amendment. We explain.
Although generally a warrant must be secured before
searching a home and its curtilage, "the warrant requirement is
subject to certain reasonable exceptions." Kentucky v. King
(King), 563 U.S. 452, 459 (2011) (citation omitted). These
exceptions are born out of courts' need to "balance the privacy-
related and law enforcement-related concerns to determine if the
intrusion was reasonable" under the Fourth Amendment. Maryland v.
King, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531
U.S. 326, 331 (2001)). "One well-recognized exception applies
when 'the exigencies of the situation make the needs of law
enforcement so compelling that [a] warrantless search is
objectively reasonable under the Fourth Amendment.'" King, 563
U.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));
see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)
("The exigent circumstances exception allows a warrantless search
when an emergency leaves police insufficient time to seek a
warrant." (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).
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This exception, commonly known as the "exigent circumstances
exception," has been applied in instances where the "need 'to
prevent the imminent destruction of evidence'" justifies a
warrantless search. King, 563 U.S. at 460 (citing Brigham City,
Utah v. Stuart, 547 U.S. 398, 403 (2006)).
In determining whether exigent circumstances justify a
warrantless search, we examine the totality of the circumstances.
Missouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in
the present case we begin by considering the gravity of the crime
being investigated and the weather conditions at the time of the
search to ascertain the constitutionality of Officer Dyer's
actions. Officer Dyer was investigating a crime of the most
serious nature, a potential double-homicide, on a cold December
morning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United
States v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing
the "gravity of the underlying offense" as one of the factors that
courts must consider "[i]n determining whether the circumstances
of a case fall into one of the emergency conditions characterized
as exigent circumstances"). As conceded by Owens's counsel at
oral argument, the temperature in Londonderry, New Hampshire at
the time of the search was 30 degrees Fahrenheit. In this cold
weather, it was reasonable for Officer Dyer to believe that any
warmth emanating from the vehicle -- the evidence -- would evanesce
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or be destroyed before he could obtain a search warrant.
It is not unprecedented to make a finding of exigency
based on a naturally occurring event's destructive consequence
over critical evidence. In McNeely, the Supreme Court recognized
that the "the natural dissipation of alcohol in the blood may
support a finding of exigency in . . . specific case[s]." 569
U.S. at 156. Such was the case in Schmerber, where the Court
concluded that "further delay in order to secure a warrant after
the time spent investigating the scene of the accident and
transporting the injured suspect to the hospital to receive
treatment would have threatened the destruction of evidence" given
that it would have "negatively affect[ed] the probative value of
the [blood alcohol test] results." McNeely, 569 U.S. at 152
(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).
We do not find it difficult to draw parallels between
the exigent circumstances found in Schmerber and those in the
instant case. Unlike other "destruction-of-evidence cases" in
which a "suspect has control over easily disposable evidence,"
here, like in Schmerber, law enforcement dealt with the type of
"evidence [that]. . . naturally dissipates over time in a gradual
and relatively predictable manner." Id. at 153. Just as the
passing of time negatively affected the probative value of the
blood-alcohol test in Schmerber, it negatively affected the
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probative value of Officer Dyer's gauging of the temperature of
Owens's vehicle through his sense of touch, and, as such,
threatened the destruction or loss of evidence. See id. at 152.
The natural dissipation of the vehicle's heat, however,
was not the only way the evidence could have been lost in the
present case. If Owens turned on his vehicle's engine, as he
eventually did, the evidence would have likewise been destroyed.
Ignition would have made it practically impossible for law
enforcement to know, based on touch, whether the vehicle was
previously warm. In deciding whether to enter the driveway and
touch Owens's vehicle, Officer Dyer was "forced to make [a] split-
second judgment[] -- in circumstances that [were] tense,
uncertain, and rapidly evolving." United States v. Almonte-Báez,
857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7
Because a light inside Owens's house was shut off a few minutes
before his entry into the driveway, Officer Dyer had an objectively
reasonable basis to believe Owens was awake and therefore capable
of exiting his house and turning on his vehicle at any moment,
thereby destroying the evidence. These circumstances, considered
7 Apart from knowing that Owens was being investigated in relation
to a double-shooting, officers Dyer and Lee were aware that Owens
had a military background and possessed firearms in his house.
Also, they did not want to be seen because their instructions were
to verify the presence of Owens's vehicles without making contact
with him.
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in conjunction with the inevitable natural dissipation of the
vehicle's warmth, support a finding of exigency and, thus, of
reasonableness as to Officer Dyer's search. See Almonte-Báez, 857
F.3d at 32 ("[T]he government . . . may invoke the exigent
circumstances exception when it can identify an 'objectively
reasonable basis' for concluding that, absent some immediate
action, the loss or destruction of evidence is likely." (citation
omitted)).
Finally, the scope and intrusiveness of Officer Dyer's
search also weigh in favor of its reasonableness. See Maryland v.
King, 569 U.S. at 448 ("Th[e] application of 'traditional standards
of reasonableness' requires a court to weigh 'the promotion of
legitimate governmental interests' against 'the degree to which
[the search] intrudes upon an individual's privacy.'" (quoting
Wyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of
Officer Dyer's search was limited to verifying the temperature of
Owens's vehicle, and its intrusiveness was minimal -- Officer Dyer
simply placed his hand on the vehicle's hood and grill for a few
seconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing
a drunk-driving suspect's blood was reasonable); Cupp v. Murphy,
412 U.S. 291, 296 (1973) (holding that the "ready destructibility
of the evidence" and the suspect's observed efforts to destroy it
"justified the police in subjecting him to the very limited
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search," the scraping of his fingernails, which was "necessary to
preserve the highly evanescent evidence they found under his
fingernails"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th
Cir. 2010) (holding that the exterior search of a garage, which
warrants "protection comparable to that afforded the curtilage of
a residence," by "look[ing] through the windows was
constitutionally reasonable").
In short, based on our fact-bound and case-specific
inquiry, we conclude that Officer Dyer's warrantless search of
Owens's vehicle while parked in his house's driveway did not offend
the Fourth Amendment because, within the totality of the
circumstances, it was objectively reasonable for Officer Dyer to
believe the search was necessary to prevent the imminent
destruction of evidence.8
8 Even if we were to find that the district court erred in denying
Owens's motion to suppress evidence referencing the temperature of
his vehicle, we would deem such error harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see
also Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in
detail below, the Government presented a plethora of evidence
unrelated to the temperature of Owens's vehicle that provided a
more than compelling basis for Owens's convictions. See infra at
26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st
Cir. 2005) (finding harmless error when erroneously admitted
evidence "pale[d] in light of the other evidence introduced at
trial").
By the same token, the very limited evidence regarding the
temperature of Owens's vehicle was inconsequential and cumulative.
See Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing
that cumulative nature of contested evidence is a factor that
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B. Motion to Suppress the Search Warrants
During the investigation of Owens's crimes, a total of
five search warrants were issued.9 On appeal, Owens argues that
the district court erred in denying his motion to suppress the
evidence seized pursuant to all the warrants, albeit on two
different grounds. He challenges the first four warrants arguing
that the affidavits on which they were based contained false or
misleading information.10 Specifically, Owens sustains that these
contributes to the conclusion that any error in admitting the
evidence was harmless). To the extent that the warmth emanating
from Owens's vehicle was probative, it served to suggest that his
vehicle had been recently used. But it was essentially conceded
that Owens had left his house and driven his vehicle in the hours
surrounding the incident at the Chabot residence. Owens himself
testified that he left his house multiple times that night and
early morning. Still more, video surveillance footage placed him
outside of his house and at Dunkin' Donuts not long after the time
of the incident. Unsurprisingly, in its closing statement the
Government did not once meaningfully refer to the temperature of
Owens's vehicle.
Thus, viewed in context, the evidence that Owens's vehicle felt
warm when Officer Dyer touched it was simply unessential to both
the Government's case and the jury's guilty verdicts. See United
States v. Hasting, 461 U.S. 499, 506 (1983) ("Supervisory power to
reverse a conviction is not needed as a remedy when the error to
which it is addressed is harmless since by definition, the
conviction would have been obtained notwithstanding the asserted
error.").
9 Two state courts, New Hampshire's Salem Circuit Court and
Maine's Biddeford District Court, and the United States District
Court for the District of Maine issued the search warrants Owens
challenges on appeal.
10 In his brief, Owens also posits that the district court erred
because on their face the search warrant affidavits did not support
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four affidavits contain certain misstatements, omissions, and
inconsistencies that affected the issuing judges' probable cause
determinations. Owens challenges the fifth warrant to the extent
its supporting affidavit relied on: (1) evidence seized pursuant
to one of the four prior "faulty warrants," or (2) the match
between DNA collected from the crime scene and the DNA obtained
from the buccal swab taken during the police interview, which Owens
avers was obtained "due to [his] uninformed and/or involuntary
consent." On these grounds, Owens contends that we should
invalidate the warrants or, in the alternative, remand to the
district court for a hearing to "fully determine the depth and
breadth" of the purported inaccuracies. We disagree.
Affidavits supporting search warrants are presumptively
valid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);
United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A
defendant may "rebut this presumption and challenge the veracity"
of a warrant affidavit at a pretrial hearing commonly known as a
Franks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations
omitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).
a finding of probable cause and did not establish a nexus between
the locations to be searched and the items sought. Owens, however,
does not support this argument with anything more than conclusory
statements. Accordingly, we deem it waived on appeal. Zannino,
895 F.2d at 17 (citations omitted).
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To be entitled to a Franks hearing, however, a defendant must first
make two "substantial preliminary showings: (1) that a false
statement or omission in the affidavit was made knowingly and
intentionally or with reckless disregard for the truth; and (2) the
falsehood or omission was necessary to the finding of probable
cause." United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)
(citation and internal quotation marks omitted).11 A defendant's
"failure to make a showing on either of these two elements dooms
[his] challenge." McLellan, 792 F.3d at 208.
In its order denying Owens's motion to suppress the
evidence obtained pursuant to the search warrants, the district
court made a detailed assessment of Owens's claims as to each
misstatement and omission he identified in the affidavits. Order
on Def.'s Mots. to Suppress and Dismiss, United States v. Owens,
No. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,
2015). In doing so, the district court concluded that Owens did
not make a showing of the two required elements -- intentionality
and materiality -- for any single misstatement or omission
contained in the affidavits. Id. Specifically, it found that the
misstatements and omissions were either the result of negligence
11 These showings are referred to as the "intentionality" and
"materiality" prongs of the Franks test. See, e.g., United States
v. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).
-22-
or innocent mistakes, or had no bearing on the probable cause
determinations.12 Id. As to Owens's contention regarding his lack
of consent to the buccal swab during the police interview, the
district court reviewed video recordings of the interview and
concluded that Owens's consent "was voluntarily given, and not the
result of duress or coercion, express or implied." Id. at *3 n.2
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).
After a careful analysis of the record, we agree with
and adopt the district court's factual findings and legal
conclusions regarding Owens's failure to make the intentionality
and materiality showings that would entitle him to a Franks
hearing, and Owens's consent to the buccal swab during the police
interview. Accordingly, we find no error in the district court's
denial of Owens's motions to suppress the evidence seized pursuant
to the search warrants. See United States v. Arias, 848 F.3d 504,
511 (1st Cir. 2017) ("In considering a district court's decision
to deny a Franks hearing, we review factual determinations for
12 We note that, in support of his motion to suppress, Owens even
labelled as "recklessly false" statements that were actually true.
For example, Owens argued that one of the affidavits falsely
identified him as a suspect, but Owens was in fact a suspect at
the time the affidavit was submitted. The same goes for some of
the omissions on which Owens's motion rested. For example, he
claimed that one of the affidavits omitted that the Chabot
residence's intruder first attempted to gain entry into the room
where Carol was hiding, when the affidavit specifically mentioned
this fact.
-23-
clear error and the probable cause determination de novo."
(citation omitted)); see also United States v. Tzannos, 460 F.3d
128, 136 (1st Cir. 2006) (recognizing that "a defendant must meet
a high bar even to get a Franks hearing").
C. Sufficiency of Evidence for Owens's Convictions
In reviewing sufficiency challenges, "[w]e view 'all
[the] evidence, credibility determinations, and reasonable
inferences therefrom in the light most favorable to the verdict[]
in order to determine whether the jury rationally could have found
that the government established each element of the charged offense
beyond a reasonable doubt.'" United States v. Valdés-Ayala, 900
F.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,
767 F.3d 132, 139 (1st Cir. 2014)). Our analysis "is weighted
toward preservation of the jury verdict." Rodríguez-Torres v.
Caribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). "[A]s
long as the guilty verdict finds support in a 'plausible rendition
of the record,' it must stand." United States v. Moran, 312 F.3d
480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we
conduct our review, we place "no premium . . . upon direct as
opposed to circumstantial evidence" since "both types of proof can
adequately ground a conviction." United States v. Valerio, 48
F.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966
F.2d 707, 711 (1st Cir. 1992)).
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For Owens's conviction on Count One, interstate domestic
violence, the jury must have found that the Government proved
beyond reasonable doubt that: (1) Owens was married to Rachel; (2)
Owens traveled in interstate commerce -- in this case, from New
Hampshire to Maine -- with the intent to "kill [or] injure" Rachel;
(3) "as a result of such travel," Owens " commit[ted] or
attempt[ed] to commit a crime of violence" against Rachel; and
(4) a "life threatening bodily injury" resulted from Owens's
actions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's
conviction on Count Two, discharge of a firearm during and in
relation to a crime of violence, the Government had to prove that
"during and in relation to [a] crime of violence," namely the crime
of interstate domestic violence charged in Count One, Owens
knowingly "use[d] . . . a firearm" by discharging it "during and
in relation" to the commission of that crime. 18 U.S.C.
§ 924(c)(1)(A)(iii).
Owens's sufficiency challenge rests on the Government's
alleged failure to prove that Owens was the person who intruded
13 The Government sought to prove the fourth prong, that Rachel
sustained a "life threatening bodily injury," for purposes of 18
U.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'
imprisonment if defendant's commission of interstate domestic
violence under § 2261(a) results in "permanent disfigurement or
life threatening bodily injury to the victim." 18 U.S.C.
§ 2261(b)(2).
-25-
into the Chabot residence, and the purported impossibility of Owens
travelling from Londonderry to Saco, invading the Chabot
residence, and returning to Londonderry within a time frame of
approximately four hours and twenty-four minutes. Owens claims
that neither Carol, Steve, nor Rachel identified him as the
intruder. Furthermore, Owens stresses that Rachel identified the
intruder as a "dark skinned person with dread locks [sic]," which
does not match his physical description since he is a "white male
who does not have dread locks [sic]." As to the second ground of
his sufficiency challenge, Owens claims that, because he was
present in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected
by two store's video surveillance footage, it was impossible for
him to have been present in Saco when the shooting took place,
2:45-2:47 a.m. He focuses on the amount of time it would have
taken him to make the trip back from Saco to Londonderry. In
particular, Owens contends that a trip from the Chabot residence
in Saco to Londonderry would take him at least two hours and
fifteen minutes, while under the Government's theory it took him
approximately one hour and forty-eight minutes. We are not
persuaded.
As the Government avers, the jury was presented a vast
amount of direct and circumstantial evidence identifying Owens as
the Chabot residence intruder. Specifically, the Government
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identifies the following incriminating evidence presented at
trial: (1) laboratory testing confirming that Owens's DNA was found
in an area where the two window panes had been affixed to each
other -- an area that would not have been exposed until the
intruder shattered the outer pane -- as well as in the door handle
and deadlock used to access the Chabot residence; (2) boot prints
and a cast of boot impression taken from the scene that matched
the boots found in Owens's car a few hours after the incident;
(3) testimony regarding bloodstains found on the armrest of the
driver's door and inside the driver's door of Owens's vehicle a
few hours after the incident; (4) Steve's testimony identifying
the intruder as a person with a similar physique to Owens's and
who, like Owens, wore glasses; (5) expert testimony revealing
Owens's efforts to manipulate his laptop's clock to make it seem
that he was at his Londonderry home at the time of the incident;
and, relatedly, (6) testimony regarding Owens's attempt to
manufacture an alibi by having his former boss lie to law
enforcement about a Skype call that never took place. This
evidence, in conjunction with the rest of the evidence presented
at trial, allows a reasonable jury to conclude beyond reasonable
doubt that it was Owens who broke into the Chabot's residence.14
14 Although not specifically listed by the Government as evidence
that led the jury to identify Owens as the Chabot residence's
intruder, we note that the .9mm ammunition stamped "WCC 1987" and
-27-
Owens's reference to Rachel's alleged identification of
the intruder as a "dark skinned person with dread locks [sic],"
which we read as an attempt to highlight evidence of exculpatory
nature, does not help him. We are not to "weigh the evidence or
make credibility judgments" in our sufficiency review, as "these
tasks are solely within the jury's province." Serunjogi, 767 F.3d
at 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st
Cir. 2000)).15
Finally, as to the alleged impossibility of Owens making
the trip back from Saco to Londonderry in less than two hours and
fifteen minutes, the jury was presented with ample testimonial
evidence, including Owens's own trial testimony, reflecting that
this ninety-mile trip usually took about one hour and thirty
minutes. Moreover, Carol testified that Owens frequently bragged
about making the trip in just over an hour. Accordingly, the jury
was presented with sufficient evidence to conclude that Owens's
Londonderry-Saco roundtrip would have lasted three hours or less,
dark clothes seized from Owens's house also strongly support the
jury's guilty verdicts. The .9mm ammunition casings matched the
shell casings recovered from the Chabot residence, while the dark
clothes, some of which was found in Owens's washing machine,
matched that worn by the residence's intruder.
15 In any event, we note that the record is devoid of any testimony
describing the intruder as such. What Rachel did testify was that
the intruder was wearing a "Jamaican hat" or "floppy [black] hat."
-28-
which fits easily within the four hour and twenty-four-minute
window separating the two instances in which he was recorded at
the Londonderry stores.
Based on the foregoing analysis, we conclude that there
was sufficient evidence to support Owens's convictions.
D. Reasonableness of Owens's Life Sentence
Owens challenges the procedural and substantive
reasonableness of his sentence. He claims the district court erred
procedurally by not considering some factors outlined in 18 U.S.C.
§ 3553, and that it substantively erred in imposing a life
sentence.
Our review is bifurcated. First, we ensure the district
court did not commit any procedural errors, such as "failing to
consider the section 3553(a) factors, selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence." United States v. Gierbolini-Rivera, 900 F.3d 7,
12 (1st Cir. 2018) (citation omitted). If a sentence is
procedurally sound, we proceed to the second step of our inquiry:
determining whether the sentence is substantively reasonable. Id.In reviewing the substantive reasonableness of a sentence, we
"focus[] on the duration of the sentence in light of the totality
of the circumstances." Id. (citing United States v. Del Valle-
Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district
-29-
court is "under a mandate to consider a myriad of relevant
factors," the weight it decides to afford to those factors is
"largely within the court's informed discretion." United States
v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.
§ 3553(a). We will ultimately find a sentence substantively
reasonable "so long as the sentencing court has provided a
'plausible sentencing rationale' and reached a 'defensible
result.'" Gierbolini-Rivera, 900 F.3d at 12 (citing United States
v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16
Because Owens failed to preserve his objection below, we
review his procedural challenge based on the district court's
alleged failure to consider § 3553(a) factors for plain error.
Id. at 13. Hence, for Owens's procedural challenge to succeed, he
must show: "(1) that an error occurred, (2) which was clear or
obvious and which not only (3) affected the defendant's substantial
rights, but also (4) seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Id. at 12 (citations
16 In considering a challenge to the substantive reasonableness
of a sentence preserved below, this court applies the abuse of
discretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,
however, did not object to his life sentence below. In such cases,
it remains an open question in this Circuit whether the abuse of
discretion standard or the plain error standard applies. Id. at
15 (citation omitted). Notwithstanding, we need not decide this
issue in the instant case given that Owens's claim fails under
both.
-30-
omitted).
Owens's procedural challenge to his sentence fails on
the first prong of the plain error test. The record reveals that
the district court took into consideration all the mitigating
factors Owens claims it did not, namely, his military accolades,
lack of criminal history, productive work history, and age. See
18 U.S.C. § 3553(a) (stating that a sentencing court "shall
consider . . . the history and characteristics of the defendant").
The district court, however, weighed these mitigating factors
against the following aggravating factors: the severity of the
crime; Owens's premeditation, given that he planned to kill Rachel
both to avoid the responsibility of caring for her as she suffered
from dementia and to be able to continue his affair, while avoiding
the scorn that divorcing Rachel would have caused; the attempted
murder of a witness and friend, Steve, to prevent him from
identifying Owens as the intruder; Owens's deceitful character, as
revealed through his participation at trial and during allocution;
and, finally, the need to protect the public, among others. See
id. This balancing of sentencing factors "is precisely the
function that a sentencing court is expected to perform," United
States v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation
omitted), and we find that the district judge did not procedurally
err, plainly or otherwise, while carrying it out in the present
-31-
case.
Further, the district court thoroughly explained the
rationale behind Owens's life sentence. Apart from the factors
listed above, it emphasized Owens's "cold-blooded behavior . . .
[and] obvious lack of conscience," as well as the "long lasting
emotional damage to both Chabots" and the severity of the injuries
inflicted on Rachel. Considering the totality of the
circumstances of Owens's crime, we find that the district court's
life sentence is a defensible result. See Gierbolini-Rivera, 900
F.3d at 12. Accordingly, we conclude that the district court did
not substantively err.
E. Motion to Dismiss the Indictment on Double Jeopardy Grounds
Finally, Owens claims that the district court erred in
denying his motion to dismiss the indictment on double jeopardy
grounds. The Double Jeopardy Clause "provides that no person may
be tried more than once 'for the same offence.'" Currier v.
Virginia, 138 S. Ct. 2144, 2149 (2018). It protects "an individual
against (1) a second prosecution for the same offense, following
an acquittal; (2) a second prosecution for the same offense,
following a conviction; and (3) multiple punishments for the same
offense." United States v. Stoller, 78 F.3d 710, 714 (1st Cir.
1996) (citation omitted). Owens, however, does not establish that
his double jeopardy challenge is premised on a prior criminal
-32-
conviction, acquittal, or punishment for the same offenses for
which he was convicted and sentenced in this case.17 We thus find
no error in the district court's denial of his motion to dismiss
the indictment on double jeopardy grounds.
III. CONCLUSION
For the reasons explained above, each of Owens's claims
is unavailing. We therefore affirm the district court's denial of
his pretrial motions, his convictions, and sentence.
Affirmed.
17He does not even allege that he was subject to any prior criminal
prosecution for offenses resulting from the events that unfolded
at the Chabot residence.
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