Case: 19-12902 Date Filed: 09/10/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12902 Non-Argument Calendar ________________________
D.C. Docket No. 7:18-cr-00459-LSC-GMB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GABRIEL DE AZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(September 10, 2020)
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-12902 Date Filed: 09/10/2020 Page: 2 of 9
Carlos Gabriel De Aza appeals his convictions for possession of
methamphetamine with the intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)
(Count 1); possession of a firearm in furtherance of a drug-trafficking crime,
18 U.S.C. § 924(c) (Count 2); and being a felon in possession of a firearm, id.
§ 922(g)(1) (Count 3). He raises two issues on appeal. First, he argues that the
district court erred in denying his motion to suppress without a hearing under
Franks v. Delaware, 438 U.S. 154 (1978), because the police officer’s affidavit in
support of the search warrant included false statements from an unreliable source
and exaggerated facts. Second, he asserts that the government presented
insufficient evidence to prove his possession of methamphetamine and firearms, as
required to sustain his convictions.
Because the district court did not err in denying De Aza’s motion to suppress
without a Franks hearing and sufficient evidence supported the jury’s verdict, we
will affirm.
I
De Aza first argues that the district court should have held a Franks hearing
because Officer Chris Webster’s affidavit in support of the application for a
warrant to search De Aza’s home: (1) included information from Loren Allen that
he saw drugs in De Aza’s home, even though Allen was unreliable; and (2) stated
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that alprazolam “pills” belonging to De Aza were found in Allen’s car, even
though only a single pill was recovered.
A district court’s denial of an evidentiary hearing is generally reviewed for
an abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1328 (11th Cir.
2014). While we have not explicitly adopted a standard of review with respect to a
Franks hearing, “abuse of discretion review is appropriate.” Id.
To justify a Franks hearing, a defendant must “make[] a substantial
preliminary showing” that the officer made intentionally false or recklessly
misleading statements that were necessary to a probable-cause finding. Franks,
438 U.S. at 155–56. “Allegations of negligence or innocent mistake are
insufficient,” and a defendant may impeach only the affiant’s statement, not the
informant’s statement. United States v. Novaton, 271 F.3d 968, 986 (11th Cir.
2001) (quoting Franks, 438 U.S. at 171–72). “When assessing whether the alleged
false statements and omissions were material, the trial court is to disregard those
portions of the affidavit which the defendant has shown are arguably false and
misleading.” Barsoum, 763 F.3d at 1328–29 (quotation omitted). The defendant
must then show that, “absent those misrepresentations or omissions, probable
cause would have been lacking.” Id. at 1329. Only upon meeting this burden
would the defendant be entitled to a hearing. Novaton, 271 F.3d at 986. To
establish probable cause, the affidavit must “state facts sufficient to justify a
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conclusion that evidence or contraband will probably be found at the premises to
be searched.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002)
(quotation omitted).
Although the government argues that De Aza failed to specifically object to
the magistrate judge’s report and recommendation, we conclude that we need not
decide whether plain-error review applies because the district court did not err—
plainly or otherwise—in denying the motion to suppress without a Franks hearing.
With respect to the use of Allen’s statement in the affidavit, De Aza provided no
evidence showing that Officer Webster recounting Allen’s statement that “an
ounce” of methamphetamine was present in De Aza’s home was intentionally or
recklessly false. See Franks, 438 U.S. at 155–56. While De Aza attempts to cast
doubt on Allen’s reliability, it is Officer Webster’s veracity that is relevant. See
Novaton, 271 F.3d at 986. And Officer Webster did not recklessly rely on Allen’s
statement. The methamphetamine found in the car corroborated Allen’s assertion
that De Aza had methamphetamine in his home, and Allen’s reliability was
bolstered by the fact that he also provided inculpatory statements.
Even assuming Officer Webster acted wrongly, probable cause existed
independent of the challenged statement. See Franks, 438 U.S. at 155–56;
Barsoum, 763 F.3d at 1328–29. Specifically, the affidavit also noted: that
methamphetamine was found in the car; that Allen said he had recently smoked
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methamphetamine in the house with De Aza; and that other sources, surveillance,
and investigative techniques indicated that evidence of De Aza’s drug activity
could be found in the house. See Martin, 297 F.3d at 1314.
Further, De Aza did not put forward any evidence that Officer Webster
intentionally inflated the amount of alprazolam recovered from the car search. See
Franks, 438 U.S. at 155–56. Aside from an assertion that the “pills” statement was
an exaggeration, De Aza provided no argument as to why the erroneous reference
was more than negligence or an innocent mistake. See Novaton, 271 F.3d at 986.
Assuming that the mistake was intentional, however, De Aza also made no
showing that the distinction between “pills” and “a pill,” was necessary to the
probable-cause finding, in light of the other information provided in the affidavit,
including that methamphetamine was found in the car in addition to the single pill.
The district court therefore did not err in denying a Franks hearing, as De
Aza failed to “make[] a substantial preliminary showing” that Officer Webster
intentionally or recklessly made false statements on which the probable cause
determination relied. See Franks, 438 U.S. at 155–56.
II
Next, De Aza asserts that the district court erred in denying his motion for
judgment of acquittal. Specifically, he argues that because multiple people lived at
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his home, and no physical evidence connected the drugs or firearms to him, there
was insufficient evidence to support that he possessed the drugs and firearms.
We review de novo the denial of a motion for judgment of acquittal based on
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Case: 19-12902 Date Filed: 09/10/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12902 Non-Argument Calendar ________________________
D.C. Docket No. 7:18-cr-00459-LSC-GMB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GABRIEL DE AZA,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(September 10, 2020)
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-12902 Date Filed: 09/10/2020 Page: 2 of 9
Carlos Gabriel De Aza appeals his convictions for possession of
methamphetamine with the intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A)
(Count 1); possession of a firearm in furtherance of a drug-trafficking crime,
18 U.S.C. § 924(c) (Count 2); and being a felon in possession of a firearm, id.
§ 922(g)(1) (Count 3). He raises two issues on appeal. First, he argues that the
district court erred in denying his motion to suppress without a hearing under
Franks v. Delaware, 438 U.S. 154 (1978), because the police officer’s affidavit in
support of the search warrant included false statements from an unreliable source
and exaggerated facts. Second, he asserts that the government presented
insufficient evidence to prove his possession of methamphetamine and firearms, as
required to sustain his convictions.
Because the district court did not err in denying De Aza’s motion to suppress
without a Franks hearing and sufficient evidence supported the jury’s verdict, we
will affirm.
I
De Aza first argues that the district court should have held a Franks hearing
because Officer Chris Webster’s affidavit in support of the application for a
warrant to search De Aza’s home: (1) included information from Loren Allen that
he saw drugs in De Aza’s home, even though Allen was unreliable; and (2) stated
2 Case: 19-12902 Date Filed: 09/10/2020 Page: 3 of 9
that alprazolam “pills” belonging to De Aza were found in Allen’s car, even
though only a single pill was recovered.
A district court’s denial of an evidentiary hearing is generally reviewed for
an abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1328 (11th Cir.
2014). While we have not explicitly adopted a standard of review with respect to a
Franks hearing, “abuse of discretion review is appropriate.” Id.
To justify a Franks hearing, a defendant must “make[] a substantial
preliminary showing” that the officer made intentionally false or recklessly
misleading statements that were necessary to a probable-cause finding. Franks,
438 U.S. at 155–56. “Allegations of negligence or innocent mistake are
insufficient,” and a defendant may impeach only the affiant’s statement, not the
informant’s statement. United States v. Novaton, 271 F.3d 968, 986 (11th Cir.
2001) (quoting Franks, 438 U.S. at 171–72). “When assessing whether the alleged
false statements and omissions were material, the trial court is to disregard those
portions of the affidavit which the defendant has shown are arguably false and
misleading.” Barsoum, 763 F.3d at 1328–29 (quotation omitted). The defendant
must then show that, “absent those misrepresentations or omissions, probable
cause would have been lacking.” Id. at 1329. Only upon meeting this burden
would the defendant be entitled to a hearing. Novaton, 271 F.3d at 986. To
establish probable cause, the affidavit must “state facts sufficient to justify a
3 Case: 19-12902 Date Filed: 09/10/2020 Page: 4 of 9
conclusion that evidence or contraband will probably be found at the premises to
be searched.” United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002)
(quotation omitted).
Although the government argues that De Aza failed to specifically object to
the magistrate judge’s report and recommendation, we conclude that we need not
decide whether plain-error review applies because the district court did not err—
plainly or otherwise—in denying the motion to suppress without a Franks hearing.
With respect to the use of Allen’s statement in the affidavit, De Aza provided no
evidence showing that Officer Webster recounting Allen’s statement that “an
ounce” of methamphetamine was present in De Aza’s home was intentionally or
recklessly false. See Franks, 438 U.S. at 155–56. While De Aza attempts to cast
doubt on Allen’s reliability, it is Officer Webster’s veracity that is relevant. See
Novaton, 271 F.3d at 986. And Officer Webster did not recklessly rely on Allen’s
statement. The methamphetamine found in the car corroborated Allen’s assertion
that De Aza had methamphetamine in his home, and Allen’s reliability was
bolstered by the fact that he also provided inculpatory statements.
Even assuming Officer Webster acted wrongly, probable cause existed
independent of the challenged statement. See Franks, 438 U.S. at 155–56;
Barsoum, 763 F.3d at 1328–29. Specifically, the affidavit also noted: that
methamphetamine was found in the car; that Allen said he had recently smoked
4 Case: 19-12902 Date Filed: 09/10/2020 Page: 5 of 9
methamphetamine in the house with De Aza; and that other sources, surveillance,
and investigative techniques indicated that evidence of De Aza’s drug activity
could be found in the house. See Martin, 297 F.3d at 1314.
Further, De Aza did not put forward any evidence that Officer Webster
intentionally inflated the amount of alprazolam recovered from the car search. See
Franks, 438 U.S. at 155–56. Aside from an assertion that the “pills” statement was
an exaggeration, De Aza provided no argument as to why the erroneous reference
was more than negligence or an innocent mistake. See Novaton, 271 F.3d at 986.
Assuming that the mistake was intentional, however, De Aza also made no
showing that the distinction between “pills” and “a pill,” was necessary to the
probable-cause finding, in light of the other information provided in the affidavit,
including that methamphetamine was found in the car in addition to the single pill.
The district court therefore did not err in denying a Franks hearing, as De
Aza failed to “make[] a substantial preliminary showing” that Officer Webster
intentionally or recklessly made false statements on which the probable cause
determination relied. See Franks, 438 U.S. at 155–56.
II
Next, De Aza asserts that the district court erred in denying his motion for
judgment of acquittal. Specifically, he argues that because multiple people lived at
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his home, and no physical evidence connected the drugs or firearms to him, there
was insufficient evidence to support that he possessed the drugs and firearms.
We review de novo the denial of a motion for judgment of acquittal based on
sufficiency of the evidence. United States v. Browne, 505 F.3d 1229, 1253 (11th
Cir. 2007). When determining sufficiency, we view the evidence “in the light most
favorable to the Government, drawing all reasonable inferences and credibility
choices in [its] favor.” Id. We will affirm “[i]f a reasonable jury could conclude
that the evidence establishes [the defendant’s] guilt beyond a reasonable doubt.”
Id. This standard does not require the evidence to be inconsistent with every
reasonable hypothesis other than guilt; rather, the jury may choose between
reasonable conclusions. Id. When circumstantial evidence is relied on,
“reasonable inferences, not mere speculation, must support the conviction.”
United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008). We have recognized
that “[c]redibility determinations are the exclusive province of the jury.” United
States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (alteration in original)
(quotation omitted). The government may rely on constructive possession through
direct or circumstantial evidence, rather than actual possession. United States v.
Albury, 782 F.3d 1285, 1294 (11th Cir. 2015). Accordingly, “a person who owns
or exercises dominion and control over a residence in which contraband is
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concealed may be deemed to be in constructive possession of the contraband.” Id.
(alteration adopted) (quotation omitted).
To prove Count 1, the government must have proven that De Aza
(1) knowingly (2) possessed a controlled substance (3) with the intent to distribute.
21 U.S.C. § 841(a)(1); United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.
1989). To prove Count 2, the government must have shown that De Aza
“(1) knowingly (2) possessed a firearm (3) in furtherance of any drug trafficking
crime.” United States v. Williams, 731 F.3d 1222, 1232 (11th Cir. 2013)
(quotation omitted); see also 18 U.S.C. § 924(c). Lastly, to sustain a conviction for
Count 3, the government must have proven three elements: (1) that De Aza was a
convicted felon and knew he was a felon; (2) that De Aza was in knowing
possession of a firearm; and (3) that the firearm was in or affected interstate
commerce. 18 U.S.C. § 922(g)(1); Rehaif v. United States, 139 S. Ct. 2191, 2195–
96 (2019); see also United States v. Reed, 941 F.3d 1018, 1020–22 (11th Cir.
2019) (applying Rehaif to the review of a pre-Rehaif conviction challenged for an
insufficient indictment and evidence).
The government presented sufficient evidence for a reasonable jury to
conclude beyond a reasonable doubt that De Aza possessed the methamphetamine
and firearms. As to the methamphetamine required for Count 1, the jury heard
from Allen that he smoked methamphetamine with De Aza in his house the day
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prior to them being pulled over and that De Aza concealed the drugs’ location from
Allen. Although Allen admitted to smoking methamphetamine the day before he
testified at trial, the jury had the sole authority to consider his credibility, see
Calderon, 127 F.3d at 1325, and a conviction based on his testimony was not
unreasonable in light of his testimony and the other evidence presented, see
Browne, 505 F.3d at 1253. Moreover, the jury heard testimony that De Aza stated
he was the sole occupant of his house and that law enforcement recovered more
than 90 grams of methamphetamine from the house. Given this testimony, the jury
was provided with sufficient circumstantial evidence from which it could have
reasonably concluded that De Aza possessed the drugs without straying into
speculation. See Albury, 782 F.3d at 1294; Mendez, 528 F.3d at 814.
Similarly, with regard to possession of the firearms required for Counts 2
and 3, the jury heard that the firearms found in De Aza’s home were near the drugs
and hidden throughout the home. Although the jury also heard evidence that De
Aza’s girlfriend lived with him and that one firearm was found in what appeared to
be a purse, the jury could reasonably conclude that De Aza knew of the firearms
and had constructive possession of them. See Albury, 782 F.3d at 1294; Browne,
505 F.3d at 1253. Accordingly, sufficient evidence supported the jury’s verdict
that De Aza had possession of the methamphetamine and firearms in order to
sustain his convictions.
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AFFIRMED.