United States v. Graf , 784 F.3d 1 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1156
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD GRAF,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.
Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau &
Pachios, LLP was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, District of
Maine, was on brief, for appellee.
April 21, 2015
THOMPSON, Circuit Judge. Working on a tip from a
confidential informant, police searched defendant-appellant Richard
Graf's home, turning up marijuana and an illegal gun. Graf was
subsequently indicted on drug and firearm charges.
He moved in a pre-trial motion to suppress the seized
evidence, arguing to a Maine federal magistrate judge that to
sweet-talk a state court justice of the peace into signing off on
the search warrant application, a police detective sugarcoated the
facts in his sworn statement accompanying it. As part of his
motion to suppress, Graf also requested an evidentiary hearing to
challenge the affiant-detective's credibility.
Neither the magistrate judge nor the district court was
convinced and denied the motion. Graf now appeals the denial,
arguing that he was entitled to a full hearing to challenge the
detective's veracity, and the magistrate judge improperly allowed
the government to investigate itself before deciding his motion to
suppress.
Despite a valiant effort, we affirm the lower court.
BACKGROUND
The Controversial Warrant Affidavit
In April 2011, Carl Gottardi, a detective lieutenant for
the Somerset County Sheriff's Department in Maine, applied for a
warrant to search Graf's home. The warrant application was
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supported by Gottardi's sworn statement, to which we'll refer from
now on as "the Graf affidavit."
In the Graf affidavit, Gottardi attested he had probable
cause to believe Graf was hiding marijuana and other drug
accoutrements in his home, based on information Gottardi received
from a confidential informant called "11-25." 11-25 "ha[d] been a
very reliable informant . . . for the past several years," and had
helped "obtain[] numerous drug search warrants, . . . with numerous
persons being charged and convicted of various . . . drug
offenses," Gottardi swore. 11-25 had "also provided other law
enforcement officials with reliable drug related information in the
past."
Specific to this case, Gottardi also wrote in the
affidavit that 11-25 relayed his personal knowledge that "for
several years [] Graf has continually sold large amounts of
marijuana," describing the location of the "camp type residence"
where Graf sold his "high grade, commercial type" stuff.1 Relying
on Gottardi's affidavit, a state Justice of the Peace signed off on
the warrant,2 and during the search of Graf's home, police found
1
To maintain the informant's confidentiality, the affidavit
did not state one way or another whether 11-25's preferred gender
pronoun was "he" or "she." For readability purposes only, we will
refer to 11-25 as "he."
2
In Maine, justices of the peace, who are not necessarily
judges but could be attorneys or other court officials, are
permitted to issue search warrants.
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marijuana plants and an unregistered short-barreled shotgun. Not
surprisingly, Graf was indicted on federal firearms possession and
drug charges.
Graf's Franks Motions
In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the
Supreme Court held that a defendant is entitled to an evidentiary
hearing to "challenge the veracity of a sworn statement used by
police to procure a search warrant," if "the defendant makes 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, and if the
allegedly false statement is necessary to the finding of probable
cause." In August 2011, Graf asked the federal trial court for one
of these so-called Franks hearings, arguing that he should be able
to test the veracity of the statements Gottardi made in his warrant
affidavit. Graf maintained via a sworn-to affidavit that at best,
Gottardi embellished 11-25's reliability, but more likely, either
Gottardi or the informant was simply lying. In addition to a
hearing, Graf also asked that the evidence seized from his home be
suppressed. Other than his affidavit, Graf supported his motion
with nothing further.
A magistrate judge denied the motion because, as she put
it, Graf did "not allege, [or] . . . attempt to make a substantial
preliminary showing, that [] Gottardi knowingly and intentionally
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made false statements in the search warrant affidavit or included
statements in reckless disregard of the truth." Rather, the
magistrate judge decided, Graf "relie[d] entirely on the theory
that the confidential informant gave Gottardi inaccurate
information," which was not enough for a Franks hearing.
Graf's team was undeterred, and his new lawyer decided to
get to the bottom of things himself by digging up all the warrant
applications filed by the Somerset County Sheriff's Department from
April 2009 through April 2012 and searching for all references to
"11-25." Turns out, there were none, that is, no warrant
applications filed prior to April 2011 (which was when Gottardi got
the warrant to search Graf's home) naming "11-25" as an informant.
"11-25" did appear, however, in two of the warrant applications
filed after Graf's, but in each of the three affidavits where "11-
25" was mentioned, the informant's background and history as a
tipster were described a little differently.
Armed with this new information, Graf marched back into
court and filed a second motion to suppress and request for a
Franks hearing. This second go-round, Graf argued that he now had
proof Gottardi "displayed a reckless disregard for the truth by
exaggerating CI 11-25's reliability and use in the past."3
3
Curiously enough, Graf also argued to the trial court that
the informant lied about ever being on Graf's property, evident
because one, the directions the informant gave to Graf's house were
incorrect and, two, were the informant ever actually there, he
would have seen the sixty-eight marijuana plants "growing in plain
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The government fired off an explanation, though, and in
support of its opposition to the motion, submitted a supplemental
affidavit from Gottardi describing his "practice to periodically
change the identifying numbers assigned to confidential
informants." Gottardi also claimed that "the person designated CI
11-25 in the Graf search warrant has been assigned four identifying
numbers during the course of" his work with Gottardi. In addition,
"[o]ccasionally, identifying numbers will be re-used for different
persons," Gottardi swore.4
Graf shot back, arguing that even if Gottardi was telling
the truth about these so-called practices of his, "[b]y assigning
the same CI numbers to three different individuals on three
different drug cases over a five month period, Gottardi is
misleading those officials who are tasked with reviewing affidavits
in support of search warrants." Gottardi's unconventional
practice, Graf urged, "is meant to enhance the credibility of the
[informant] whose number repeatedly appeared before the same
[reviewing official], even though, according to Gottardi, they are
different people."
sight" on Graf's property. Graf, however, did not pursue on appeal
the informant's unreliability as an additional basis for
discrediting Gottardi's affidavit.
4
Gottardi's affidavit suggests that these practices are his
personal ones, and not necessarily the ones sanctioned by the
sheriff's office or other law enforcement. Indeed, the government
conceded at oral argument that reusing the same number for
different informants is "highly irregular."
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Magistrate's Preliminary Order
In response, the magistrate judge issued a preliminary
order noting that she was "not persuaded that Defendant ha[d] made
a substantial preliminary showing that Lt. Gottardi supplied . . .
false representations concerning the background of 11-25 as
described in his [April] 2011 warrant application." The judge
explained: "[t]he mere fact that there is no earlier warrant
application involving an informant identified as 11-25 readily can
be explained by a practice of changing an informant’s numerical
identifier over time."
Still, Graf had "raised a serious concern" by "expos[ing]
an irregular practice of identifying confidential informants that
raises some cause for concern about Lt. Gottardi’s underlying
affidavit." The court noted that "assigning the same numerical
identifier to three different confidential informants within a
relatively brief timespan" was a "surprising revelation about what
seems . . . a highly irregular, ill-advised, and potentially
misleading procedure." Thus, the magistrate judge observed,
Gottardi's second affidavit "raises as many questions as it
resolves."
Given her lingering concerns, the judge ordered the
government to "investigate this matter to assure itself" that 11-25
not only existed, but also was whom Gottardi claimed.
Specifically, the government was to file an in camera report
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addressing whether: the "11-25 described in the April 2011 warrant
application is an ascertainable individual with the history and
'pedigree' Lt. Gottardi has attributed to him"; "there were prior
matters in which this same 11-25 (under whatever other identifier)
supplied information supporting drug search warrants"; and "there
were in fact three separate informants identified as 11-25 between
April and October of 2011." The judge also ordered that the
"investigating individual [] be someone other than the prosecuting
attorney assigned to this specific case and [] not be employed by
the Somerset County Sheriff's Department or the Bureau of Alcohol,
Tobacco or Firearms ["ATF"]."5 The investigation would "enable
[the court] to determine whether [] a showing might be plausible if
a Franks hearing were convened."
Amendments to the Preliminary Order
Shortly after the magistrate judge entered the
preliminary order, the government filed a motion requesting that an
ATF agent be permitted to conduct the investigation. The judge
held a telephone conference to hear the parties. She expressed her
confusion about the government's motion; she had assumed the
investigation would be akin to a paralegal from the U.S. Attorney's
office simply "reviewing paperwork as opposed to a lot of field
work and interviews and so on." The government responded that it
5
ATF was the agency that presented Graf's case to the U.S.
Attorney's Office to prosecute.
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assumed the court wanted "an agent actually going out and
attempting to interview 11-25 and interviewing Mr. Gottardi and --
to gather those facts that the Court asked that we investigate."
Despite the court's clarification of its expectations, the
government pressed that it was "reluctant" to have someone from its
office investigate because that person could later be called as a
witness to answer "some additional questions that might not be
apparent from the report."
Graf objected, arguing that the court should assign a
"neutral third party" to conduct the investigation, as opposed to
someone from an agency that helped procure his prosecution. But
over Graf's objection, the court allowed the government's request
in part and ordered that an ATF agent could "conduct the
investigation subject to the limitation that the ATF agent in
charge of this case not be the one who conducts" it.
The ATF Report
On January 4, 2013, the government submitted its report
to the court in camera. In the report, ATF Special Agent
Christopher Durkin stated that in addition to interviewing
Gottardi, other police officers, and the informant designated as
11-25 in the Graf affidavit, he also reviewed warrant applications
from other cases to confirm Gottardi's statements in the affidavit.
Satisfied after reviewing the report, the magistrate
judge concluded that Graf did not make "a substantial preliminary
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showing that [] Gottardi . . . or any other law enforcement
officer, made untruthful or deliberately misleading statements in
the affidavit," and recommended that the trial judge deny Graf's
request for a Franks hearing. The district court judge adopted the
magistrate judge's recommendation, over Graf's objection, also
denying Graf's motion to suppress.
Graf ended up pleading guilty to possessing an
unregistered shotgun and manufacturing marijuana, reserving his
right to appeal the denial of his motion to suppress. The district
court sentenced him to two years in prison, among other conditions.
This timely appeal followed.
STANDARDS OF REVIEW
"We review the denial of a Franks hearing for clear
error." United States v. Reiner, 500 F.3d 10, 14 (1st Cir. 2007)
(citation omitted). Clear error "exists only when we are left with
the definite and firm conviction that a mistake has been
committed." United States v. Hicks, 575 F.3d 130, 138 (1st Cir.
2009) (citation and quotations omitted).
"We apply a mixed standard of review to the district
court's denial of a motion to suppress, reviewing findings of fact
for clear error and conclusions of law, including whether a
particular set of facts constitutes probable cause, de novo."
United States v. Belton, 520 F.3d 80, 82 (1st Cir. 2008) (citation
omitted). "To prevail, [a defendant] must show that no reasonable
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view of the evidence supports the denial of the motion to
suppress." Id. (citation omitted).
DISCUSSION
Graf's main argument on appeal is that the trial court
erred by denying him the opportunity to challenge Gottardi's
affidavit at a formal Franks evidentiary hearing, where he would
have had been able to cross-examine Gottardi. More specifically,
Graf relies on out-of-circuit precedent to argue that "the court
should not give the government an opportunity to present its
evidence on the validity of the warrant" without holding a "full
evidentiary Franks hearing."6 Graf also offers the secondary
argument that even if the lower court did not procedurally err in
hearing out the government before making its Franks ruling, the
particular procedure chosen by the magistrate judge -- to allow
ATF, a government entity, to investigate the truthfulness of Graf's
6
We note that Graf does not appear to have raised this
argument to the district court. To the contrary, in his response
to the government's opposition to his motion to suppress, Graf
actually uses Gottardi's supplemental affidavit to boost his own
case -– Gottardi's "false information about using [the informant]
previously and overstat[ing] the charges he was facing," and "that
Gottardi constantly changes CI's in a way which makes little
sense," "[w]hen combined together," "presents this Court with the
requisite 'substantial preliminary showing' that Gottardi's
affidavit contains false statements." Generally, we deem arguments
not raised before the district court waived. Millay v. Me. Dep't
of Labor, Bureau of Rehab., Div. for Blind & Visually Impaired, 762
F.3d 152, 157 n.4 (1st Cir. 2014). But given that the government
did not raise the waiver issue, we will address Graf's argument.
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affidavit statements -- was sufficient error such that we should
vacate the denial of his motion to suppress and remand it.
We discuss each of these arguments in turn.
Substantial Preliminary Showing Under Franks
Addressing Graf's primary argument requires us to unpack
it. In so doing, we are left with two distinct issues. The first
is a generally applicable legal proposition -- as a procedural
matter, whose evidence is a trial judge allowed to consider in
making the threshold determination that a defendant has not made a
substantial preliminary Franks showing? In other words, is Graf
correct in arguing that a court is limited to reviewing only the
materials a defendant submits, or is the court also permitted to
consider additional evidence submitted by the government?7 The
second question is a case-specific one -- if Graf carries the day
on the first point and the magistrate judge was supposed to
consider only his offer of proof, was the evidence Graf submitted
enough to make a substantial preliminary showing that Gottardi lied
in the affidavit in question?8
7
In making this argument, Graf urges us to adopt the holding
of United States v. McMurtrey, 704 F.3d 502, 510 (7th Cir. 2013),
where the Seventh Circuit held that "in deciding the threshold
question whether to grant a Franks hearing, the court should have
limited its consideration of new information to the defense's
evidence tending to refute probable cause. The court should not
have considered at that preliminary step the government's
explanation of the contradictions and discrepancies."
8
As we mentioned above, Franks also requires that the false
statement be made knowingly or intentionally (or with reckless
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Unlike the McMurtrey court, neither we nor the Supreme
Court has explicitly addressed whether it constitutes legal error
for a trial court to consider government evidence before deciding
whether a Franks hearing is warranted. We need not do so today.
For purposes of our analysis, we can assume, without deciding, that
Graf's take on the first question is the correct one because, as we
discuss below, he still fails on the second question.
In sum, we find that the evidence Graf submitted to the
magistrate judge did not show that Gottardi lied in the affidavit
in question, and therefore, Graf has not convinced us that the
lower court clearly erred in denying him a Franks hearing.
Legal Backdrop
To frame our analysis, we'll first look at what it means
to make a substantial preliminary showing in the Franks context.
A search warrant affidavit "must set forth particular
facts and circumstances underlying the existence of probable cause"
to search. Franks, 438 U.S. at 165. Sometimes, law enforcement
agents seeking search warrants rely on tips from confidential
informants to form the basis of probable cause. In those cases,
disregard for the truth) and be necessary to the finding of
probable cause. The only issue either party focuses on in this
case, though, is the falsity of Gottardi's statements. That is,
the government does not dispute that if Gottardi made false
statements, he did so knowingly or with reckless disregard.
Likewise, the government does not argue that the allegedly false
statements were not necessary to the finding of probable cause, and
Graf does not argue that the warrant application, on its face, was
insufficient for a probable cause finding.
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"the affidavit must recite some of the underlying circumstances
from which the informant concluded that relevant evidence might be
discovered, and some of the underlying circumstances from which the
officer concluded that the informant . . . was credible or his
information reliable." Id. (citations and quotations omitted);
United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) ("Where
the primary basis for a probable cause determination is information
provided by a confidential informant, the affidavit must provide
some information from which a magistrate can credit the informant's
credibility.").
Assuming such conditions are met, it has long been the
case that "[a]n affidavit submitted in support of a search warrant
application is presumed valid." United States v. Grant, 218 F.3d
72, 77 (1st Cir. 2000) (citations omitted); see Franks, 438 U.S. at
171. In Franks, however, the Supreme Court was tasked with
deciding whether this "presumption of validity" is absolute, or
whether "in certain circumstances, a challenge [by a defendant] to
a warrant's veracity must be permitted." Franks, 438 U.S. at 164,
167, 171.
The Court decided that a "factual showing sufficient to
comprise probable cause . . . [must] be a truthful showing," "in
the sense that the information put forth is believed or
appropriately accepted by the affiant as true." Id. at 164-65.
Taking into consideration the practical limitations of drafting a
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warrant affidavit (for instance, "an affidavit may properly be
based on hearsay, on fleeting observations, and on tips received
from unnamed informants"), id. at 167, the Court ultimately held
that when a "defendant makes 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, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that [an
evidentiary] hearing be held at the defendant's request." Id. at
155-56. If the defendant shows at the evidentiary hearing "perjury
or reckless disregard," "the search warrant must be voided and the
fruits of the search excluded," unless there is another basis for
probable cause in the warrant besides the false statements. Id. at
156.
The high Court further mandated that to make a
substantial preliminary showing, a defendant must make "allegations
of deliberate falsehood or of reckless disregard for the truth . .
. accompanied by an offer of proof." Id. at 171. His "attack must
be more than conclusory and must be supported by more than a mere
desire to cross-examine." Id. He must "point out specifically the
portion of the warrant affidavit that is claimed to be false" and
accompany his allegations with a "statement of supporting reasons."
Id. "Affidavits or sworn or otherwise reliable statements of
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witnesses should be furnished, or their absence satisfactorily
explained." Id.
Against that backdrop, we turn to the specifics of Graf's
case.
No Substantial Preliminary Showing
During the trial court proceedings, Graf pressed that the
government's explanation of the discrepancies in the three
affidavits that named "11-25" made no sense, and so he needed a
hearing to determine whether the detective was telling the truth.
On appeal, however, Graf takes a different tact -- he instead
distinctly implores us not to consider any additional evidence or
justification from the government, urging that it is legal error to
do so. Thus, even though we know, now, that Gottardi may actually
have used the designation "11-25" to refer to three different
people in the three affidavits, Graf asks us not to consider that
explanation. Therefore, our review is limited to whether Graf's
motion for a Franks hearing and his accompanying evidence were
facially sufficient to make a substantial preliminary showing.9
9
We do not mean to suggest that Gottardi's explanation for
the affidavit discrepancies is necessarily a legitimate one. It's
difficult to imagine how a law enforcement agent -- maintaining
records of multiple criminal targets over a number of years --
would be able to keep straight several informants -- of similar
pedigrees and offering similar types of information -- by using one
number.
Of greater concern, however, is that, as the government
concedes, to adopt such a procedure is "highly irregular," and as
far as we can tell, there is no indication on this record that the
justice of the peace who reviewed Gottardi's warrant applications
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For the reasons discussed below, we find that Graf did
not meet his burden.
Graf argues that he successfully demonstrated that
Gottardi lied in the Graf affidavit in two ways. First, Graf
argues, Gottardi swore in the April 2011 affidavit that "11-25
ha[d] been a very reliable informant . . . for the past several
years," and that he had been able to get sign-off on "numerous"
warrants by utilizing information he got from 11-25. But, Graf
contends, a review of the warrant applications filed by the
Somerset Sheriff's office from April 2009 to April 2011 showed that
none actually listed "11-25" as an informant. Second, in two
warrant applications filed after Graf's, both Gottardi and his
colleague claimed to have relied on tips from "11-25." But, Graf
argues, in both of those affidavits and in the Graf affidavit, the
was aware that Gottardi took up such an unusual practice. To
alleviate this concern, which was shared by the magistrate judge,
the government argues that a "side-by-side comparison" of the three
affidavits "supports the conclusion that three different
individuals had been given the designation of CI 11-25." But as
our analysis shows, that is not necessarily so. An official
reviewing the three affidavits could easily interpret the
affidavits the way we do -- as slightly different from each other,
but not inconsistent, such that all three affidavits could be
describing the same informant. Thus, unless a justice of the peace
has some reason to know that police would be using the same (rather
specific) identifying number for multiple individuals, we agree
with the magistrate judge that such a practice is "potentially
misleading" and therefore "ill-advised." Because Graf did not
raise the argument on appeal, however, we do not have occasion to
decide today -- and therefore will not comment on -- which
direction the government's justification for the affidavit
discrepancies might have tipped the scale in this case.
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descriptions of "11-25" are all different, suggesting that "11-25"
doesn't really exist.
Graf's first point lacks luster. The fact that "11-25"
does not appear in earlier search warrant affidavits is not, on its
own, sufficient to make a substantial showing that Gottardi lied.
As the magistrate judge indicated, it makes sense that to protect
an informant's identity, law enforcement would use different
numbers to identify the same person, and the Graf affidavit
specifically stated that "said informant is herein referred to as
11-25." (Emphasis added). Thus, Gottardi's statement did not
foreclose the possibility that the informant was identified by some
other number in other warrant applications.
But Graf's second point gives us pause. In two warrant
applications filed after Graf's (in July and October 2011),10
Gottardi and a staff sergeant, Michael W. Knight, claimed to have
relied on 11-25's tips. As Graf points out, however, in all three
affidavits, the descriptions of 11-25 are a little different.
Specifically, in the Graf affidavit, filed in April,
Gottardi says that "11-25": (1) helped him get "drug search
warrants" resulting in "numerous persons being charged and
convicted of various felony/misdemeanor drug offenses"; (2) was a
"drug user" with a "criminal record, to include convictions for
10
The July and October 2011 affidavits don't appear to be
related to Graf's case.
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drug related offenses"; (3) over the past several years, had
"routinely assisted . . . in apprehending drug dealers, without
requesting any type of consideration," while other times assisting
"to hopefully gain consideration on pending criminal charges
against" him; and (4) had no charges pending against him at the
time and did not ask for anything in return for providing the
information that incriminated Graf.
Then in the July 2011 application, Gottardi described
"11-25" like this: (1) he had helped Gottardi "solve[] numerous
felony level crimes, to include Robbery, burglaries and drug
cases"; (2) had made controlled drug buys for police; (3) had
"routinely assisted . . . over the past several years, without
requesting any type of consideration," and had provided assistance
even when he did not have criminal charges pending against him; (4)
had a criminal record, including "felony level convictions"; (5)
was a "past known drug dealer/drug user"; and (6) did not have any
criminal charges pending against him at the time or request any
consideration for helping out with the case.
Finally, in the October 2011 affidavit, Knight stated
that Gottardi told him "11-25": (1) was a "known drug user"; (2)
who had made controlled drug purchases for police; and (3) was
"presently assisting [Gottardi] with apprehending drug dealers . .
. in hopes that the District Attorney will take [his] cooperation
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into consideration, regarding felony level criminal charges that
are presently pending against [him]."
Graf argues that "taken together [these descriptions]
raise a substantial question about just how many different crimes
one confidential informant could have reported to Gottardi." A
closer look, however, shows that while the descriptions of "11-25"
are not identical in the three affidavits, as Graf concedes, the
descriptions "are not necessarily inconsistent." To be sure, only
the July warrant application mentions robberies and burglaries (the
other two affidavits focus exclusively on drug-related crimes).
But as we noted above, we view search warrant affidavits under a
lens of presumed validity, and theft is not so far-removed from
drug-dealing that it would raise an eyebrow that 11-25 had
knowledge of both types of crimes. Further, that Gottardi
mentioned robberies and burglaries in only the July affidavit, and
not in the others, does not mean we should infer that 11-25 is not
the same person in all three. Gottardi could simply have failed to
mention the theft crimes in the April and October affidavits.
Finally, while 11-25 did not have any charges pending against him
in April or July, it's certainly possible that he caught one by the
time October rolled around.
Thus, even without taking into account the government's
explanation for the affidavits' discrepancies, we do not have a
"definite and firm conviction" that Gottardi lied in his April 2011
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affidavit, such that we could say that the lower court clearly
erred in denying Graf's request for a Franks hearing. Indeed, all
three descriptions of 11-25 paint a picture of a drug user who,
when he feels so inclined and probably to squirrel away the good
favor of police in case he needs it later, helps cops catch drug
dealers.
As we have acknowledged in the past, making a substantial
preliminary showing is no easy feat, particularly when law
enforcement relies on tips from unnamed confidential informants.
See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When
the government obtains a search warrant based on information
provided by a confidential informant, defendants often lack the
information required to meet the exacting standards of Franks.").
Graf, like many other defendants in the same boat, has simply
failed to meet his burden of making a substantial preliminary
showing -- particularly under the deferential clear error standard
of review we afford to a court's denial of a Franks hearing.
Given our holding, then, we need not reach whether the
magistrate judge procedurally erred in crediting the government's
side of the story before making a final ruling on Graf's Franks
motion -- as we discussed above, Graf's submissions fail to make
the requisite showing.
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Motion to Suppress
We also briefly address Graf's secondary argument that
even if it were proper for the trial court to consider the
government's evidence in making its Franks ruling, we should "still
vacate the denial of the motion to suppress on the ground that the
government should not have been permitted to investigate itself."
"In order for a warrant to be voided and the fruits of
the search excluded, the defendant must meet an even more exacting
standard [than for a Franks hearing]: he must (1) show that the
affiant in fact made a false statement knowingly and intentionally,
or with reckless disregard for the truth, (2) make this showing by
a preponderance of the evidence, and (3) show in addition that with
the affidavit's false material set to one side, the affidavit's
remaining content is insufficient to establish probable cause."
United States v. Tzannos, 460 F.3d 128, 136 (1st Cir. 2006)
(quoting Franks, 438 U.S. at 156) (quotations omitted).
As we discussed above, Graf has failed to show that
Gottardi made a false statement in his warrant affidavit, and
certainly has not done so by a preponderance of the evidence. Graf
also offers absolutely no law to support his contention that
although he failed to make a preliminary showing that Gottardi
lied, the magistrate judge was still under an obligation to probe
further, let alone order that an investigation be conducted by a
person of his choosing. Graf, in fact, does not even set out a
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standard of review for this inquiry. We consider the argument
waived for lack of development. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
CONCLUSION
For these reasons, we affirm the district court.
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