United States Court of Appeals For the First Circuit
No. 23-1029
UNITED STATES,
Appellee,
v.
DAMIAN CORTEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Montecalvo, Lynch, and Rikelman, Circuit Judges.
Sara E. Silva, with whom Silva Kettlewell & Pignatelli LLP was on brief, for appellant. Mark T. Quinlivan, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.
July 11, 2024 LYNCH, Circuit Judge. Following the denial of his two
motions to suppress evidence seized pursuant to two different
search warrants, Damian Cortez conditionally pled guilty, first,
to conspiracy to distribute and to possess with intent to
distribute controlled substances, and second, to possession with
intent to distribute four hundred grams or more of fentanyl. The
government was prepared to introduce evidence at trial that Cortez
had participated in such a conspiracy as a member of a
Massachusetts gang known as "NOB."
Cortez appeals from the district court's denial of his
second motion to suppress evidence seized, pursuant to a warrant
targeting a RICO conspiracy, from an apartment in which the
government asserted Cortez was residing. The court rejected
Cortez's contention that the affidavit supporting the warrant
application did not establish probable cause either that Cortez
was an associate in a RICO conspiracy or that Cortez was residing
in the apartment (especially in light of an earlier warrant
affidavit asserting it was likely he lived elsewhere). The court
denied his request for a Franks hearing, which he also appeals.
See Franks v. Delaware, 438 U.S. 154 (1978). We affirm.
I. Background
In May 2020, Detective Brian Ball of the Boston Police
Department applied for a search warrant to search two cell phones
believed to belong to Cortez. In his supporting affidavit, Ball
- 2 - said he had been "assigned to the Boston Police Youth Violence
Strike Force (Gang Unit)," and he described a "multi-agency
investigation into the criminal activities of a criminal
organization known as the 'Wendover Street Gang' and a subset of
the Wendover gang referred to as 'NOB.'" NOB/Wendover gang members
and associated persons, including Cortez, were "being investigated
for offenses involving, amongst others, racketeering conspiracy,
. . . violent crimes in aid of racketeering, . . . possession of
firearms in furtherance of crimes of violence, . . . and possession
of firearms and ammunition by convicted felons . . . ." The
affidavit stated:
NOB/Wendover members and associates have been involved in numerous shootings and violent altercations throughout the greater Boston area with rival gangs . . . . NOB/Wendover members and associates have admitted to law enforcement and others that they obtain illegal drugs and firearms from within the state of Massachusetts and other states. During this time period, numerous NOB/Wendover members and associates have been arrested for various crimes, including homicide, possession with intent to distribute illegal drugs, illegal possession of firearms and ammunition, robbery, assault and others.
The affidavit further stated that, on April 28, 2020,
detectives had observed a man, later identified as Cortez, driving
a white 2020 Chevrolet Malibu while illegally using his cell phone.
The detectives attempted to conduct a traffic stop, but the driver
"sped away at a high rate of speed, with the detectives following,"
- 3 - and then "struck a parked vehicle," at which point the driver "fled
the accident on foot." Law enforcement, based on a search of the
Massachusetts Registry of Motor Vehicles License photo database
and the discovery in the vehicle of a prescription bottle with
Cortez's name on the label, identified Cortez as the operator who
had fled. The officers found two cell phones in the car. A bag
of off-white powder found in "C[ortez]'s flight path as he ran
from the crashed Malibu the previous day" was reported by a
neighborhood resident. The bag "tested positive for [f]entanyl."
Detective Ball's May affidavit stated that there was
probable cause to believe Cortez was a member/associate of
NOB/Wendover and that the cell phones would contain "evidence,
fruits and instrumentalities of the" offenses targeted by the
warrant, and described the previous incidents and investigations
which supported this conclusion. Among these, "[i]nvestigators
ha[d] monitored a pole camera placed near C[ortez]'s home . . . in
Randolph," and had observed Cortez engaging in "quick encounters
and frequently entering[] and exiting [the Randolph location] for
short time periods," behavior that Ball stated "is consistent with
someone engaging in drug distribution." The search of the cell
phones and further investigation produced more evidence
implicating Cortez. The warrant was issued by a Magistrate Judge
on May 6, 2020.
- 4 - In June 2020, Detective Ball sought a separate warrant
to search an apartment in Attleboro, Massachusetts, where
investigators had cause to believe Cortez was residing at the time.
The application listed as the target offense of the search "RICO
conspiracy," 18 U.S.C. § 1962(d). Ball's supporting affidavit
repeated much of the information that was included in the May
affidavit about the multi-agency investigation into NOB, and added
that there was probable cause to believe that the Attleboro
apartment "contains evidence, fruits, and instrumentalities of"
Cortez's involvement in a RICO conspiracy with other NOB
members/associates.
To support the assertion that Cortez was involved in a
RICO conspiracy, the affidavit stated that, "[p]er the ongoing
investigation, Cortez has been identified as working with NOB
members/associates to commit crimes, including drug trafficking,
sex trafficking, and arson." Ball described Cortez's arrest and
charges in Maine with other NOB member/associates for sex
trafficking, that "one of the sources of [drug] supply utilized by
NOB members/associates . . . is . . . Cortez's brother," and that
in February 2020,
Cortez and other NOB members/associates were observed in a black Honda Fit vehicle that has been associated with a[n] NOB-related murder . . . . [which] occurred on February 8, 2020[,] in Brockton, MA. The suspects in the murder were captured on surveillance video travelling in tandem to the crime scene and leaving the
- 5 - area of the crime scene in two vehicles, [one of which was] the black Honda Fit. The black Honda Fit was also observed parked at the home of Cortez's parents . . . in Randolph, MA, on February 25, 2020. Based on [his] training and experience, [Ball] believe[d] the vehicle was being kept at the Randolph location to avoid detection by law enforcement.
As further support, the affidavit stated that there was
"probable cause to believe that Cortez [had] committed a
gang-related arson in furtherance of NOB's criminal activities on
or about February 25, 2020, in Abington, MA. Based on a review of
video footage recovered by investigators, Cortez set fire to a
silver Honda Accord," a vehicle that "had been stolen by NOB
members/associates" earlier in the month, and whose theft had also
involved the kidnapping of a five-year-old child. Ball stated
that, "[b]ased on [his] training and experience, [he] believe[d]
that Cortez destroyed the vehicle to hinder law enforcement efforts
to recover forensic evidence from the vehicle which could be used
to connect NOB members/associates to the carjacking/kidnapping."
Detective Ball additionally provided, as evidence of
Cortez's involvement in a RICO conspiracy, information that had
been gathered from the search of the two cell phones which had
been authorized by the Magistrate Judge in May. Investigators had
observed that
[m]any of Cortez's text messages were sent to drug suppliers, in efforts to obtain narcotics, and to buyers, in efforts to re-distribute narcotics. Many of these
- 6 - messages contained efforts to pay and collect drug debts from various individuals. In messages in mid-March 2020, Cortez communicated with NOB member Anthony Depina about obtaining marijuana. In addition, investigators also have identified numerous communications between Cortez and NOB member Moses Cabral. Included were communications between . . . Cortez and Cabral, dated April 28, 2020, which support that, prior to being involved in the [April 28] hit and run, . . . Cortez had met with Cabral and "re-upped," acquiring from Cabral the fentanyl found abandoned in the driveway along Cortez's flight path the following day.
As to the nexus to the Attleboro apartment sought to be
searched, the affidavit stated that, based on law enforcement's
continuing investigation of Cortez, "there is probable cause to
believe that [he] is residing at the [Attleboro apartment], which
is a location associated with Anthony Depina, an NOB
member/associate, who is one of Cortez's close associates. Based
on the investigation, Depina allows Cortez to stay at the
[Attleboro apartment] . . . ."
To support that Cortez was "residing" then at the
Attleboro apartment, Detective Ball stated that "GPS data for the
phone which Cortez used for drug-related communications showed
that the phone was regularly located at the [Attleboro apartment]."
Indeed, that phone included photographs which the phone's metadata
established "were taken from inside the [apartment] and showed the
interior of the apartment," and the photographs revealed that
"Cortez [was] resid[ing] on the top" apartment of the building,
- 7 - the apartment which was the target of the requested search. The
Investigators conducting surveillance of the [apartment] have observed Cortez there on numerous occasions over an extended period of time. Cortez has frequently been observed entering and exiting [the building], usually through the rear door. Cortez was observed at [the building] within the last two weeks. Cortez's vehicle, a white Chrysler sedan, has been observed parked at the [building] over an extended period of time. The most recent observation of the vehicle occurred within the last week.
As evidence that Depina was not residing at the apartment
and that he was allowing Cortez "to stay" at the apartment, the
affidavit stated that
Depina primarily resides at a residence in Providence, RI, with his child and the child's mother. Investigators have confirmed in a recent encounter with Depina that he is residing in Rhode Island. Depina lists the [Attleboro apartment] as his mailing address with the Massachusetts Registry of Motor Vehicles and on credit reports.
Further, "[t]here is a mailbox affixed next to the right door [of
the building] labeled '3 Depina.'"
To support that there was probable cause to believe that
the Attleboro apartment would contain evidence of the target
offense, Ball's affidavit stated that,
[b]ased on [his] training and experience, [he] know[s] that individuals typically possess in their residences documents and other items that reflect their occupancy and control of the premises, . . . . that members and
- 8 - associates of violent street gangs, such as NOB, maintain various types of gang-related materials at their residence as part of their membership in or association with the gang, . . . . [and] that members and associates of violent street gangs, like NOB, will maintain weapons at their residence . . . .
The same Magistrate Judge issued the June 2020 warrant.
On June 16, 2020, law enforcement officers executed the
warrant and seized many items from the apartment, including several
hundred blue pills containing fentanyl packaged for distribution;
"a significant amount of powder fentanyl"; "a commercial pill
press"; "various dies to stamp pills associate[d] with the
commercial pill press"; "various types of cutting agents"; and "a
package for the shipment of materials related to the commercial
pill press, which had been shipped and addressed to [Cortez]."
The government alleged that "the type of blue fentanyl pills seized
from the apartment w[as] consistent with [the] pills distributed
by various members and associates of . . . NOB." Investigators
also recovered from the apartment a notebook containing "rap lyrics
in which [Cortez] admitted to dealing drugs and his association
with the NOB street gang." This appeal concerns the district
court's denial of suppression of that evidence.
II. Procedural History
In September 2020, a grand jury charged Cortez with
possession with intent to distribute four hundred grams or more of
- 9 - fentanyl, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vi)
and 18 U.S.C. § 2; and with committing a Mann Act violation under
18 U.S.C. § 2421. In March 2022, a superseding indictment was
returned that, in relevant part, additionally charged Cortez with
conspiracy to distribute and to possess with intent to distribute
controlled substances, in violation of 21 U.S.C. § 846.
In February 2022, Cortez filed a motion to suppress
evidence obtained from the June search of the Attleboro apartment,
and separately, a motion to suppress evidence obtained from the
May search of the two cell phones. In each of these motions,
Cortez sought a hearing pursuant to Franks v. Delaware, 438 U.S.
154 (1978), asserting that the affidavits supporting the warrant
applications were tainted by false statements and omissions.
Unusually, trial counsel for Cortez submitted his own
affidavit, which stated:
I have reviewed the discovery provided in this case, including the footage of a surveillance video of a car fire occurring in Abington on February 25, 2020. On the basis of my review, I am unable to identify the person setting fire to the vehicle. I have requested from the AUSA information concerning the basis of the identification in the Affidavit, and have been informed that the Defendant was identified from the clothing he was wearing.
The affidavit also stated:
I have reviewed the text messages of Defendant's cell phone provided to me in discovery and have not been able to locate in said messages any communications between Moses
- 10 - Cabral and Defendant on April 28, 2020, that would form the basis of a conclusion that Defendant had "re-upped" for fentanyl on April 28, 2020. I have requested of the AUSA that he/she provide me with any such messages but as of this date no such messages have been provided.
In May 2022, the district court, in an order on the
motions to suppress, denied Cortez's motions and found that no
Franks hearing or further argument was warranted. In June 2022,
Cortez pled guilty to conspiracy to distribute and to possess with
intent to distribute controlled substances, and to possession with
intent to distribute fentanyl. The government dismissed the Mann
Act count of the superseding indictment. Cortez's plea agreement
reserved his right to appeal the denial of his motions to suppress
evidence.
Cortez's appeal is restricted to attacking the denial of
the motion to suppress the search of the Attleboro apartment
authorized by the June warrant, and the denial of the Franks
hearing.
III. Analysis
1. Standard of Review
In reviewing a denial of a motion to suppress, this court
reviews de novo a district court's application of the law to its
findings of fact, including its determination of whether there was
probable cause to support a search warrant. United States v.
Corleto, 56 F.4th 169, 174-75 (1st Cir. 2022). We review
- 11 - "questions of fact and credibility determinations . . . for clear
error," United States v. Cowette, 88 F.4th 95, 100 (1st Cir. 2023),
viewing "the facts in the light most favorable to the district
court's ruling," id. (quoting United States v. Oquendo-Rivas, 750
F.3d 12, 16 (1st Cir. 2014)). "So long as any reasonable view of
the evidence supports it, we will uphold the denial of the motion
to suppress." Id. (internal quotation marks omitted) (quoting
United States v. Molina-Gómez, 781 F.3d 13, 18 (1st Cir. 2015)).
Where, as here, the search was pursuant to a warrant
issued by a magistrate judge, the defendant faces an even higher
burden. We "accord 'considerable deference to reasonable
inferences the [issuing justice] may have drawn from the attested
facts,'" United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002)
(alteration in original) (quoting United States v. Zayas-Diaz, 95
F.3d 105, 111 (1st Cir. 1996)), and "[i]n a doubtful or marginal
case, the court defers to the issuing magistrate's determination
of probable cause," id.
In reviewing a denial of a request for a Franks hearing,
we have stated in some cases that "we review the [d]istrict
[c]ourt's factual determinations . . . for clear error, and its"
legal determinations de novo. United States v. Maglio, 21 F.4th
179, 186 (1st Cir. 2021) (quoting United States v. Veloz, 948 F.3d
418, 427-28 (1st Cir. 2020)). But in other cases, we have
explained more simply that "[w]e review the denial of a Franks
- 12 - hearing for clear error." United States v. Austin, 991 F.3d 51,
57 (1st Cir. 2021). We need not dwell on the applicable standard
of review here, however, because the parties do not dispute that
clear error review applies to the district court's denial of
Cortez's request for a Franks hearing.
2. Participation in a RICO Conspiracy
We agree with the district court that "the Magistrate
Judge reasonably concluded that the June affidavit establishes
probable cause to believe Cortez was a participant in a RICO
conspiracy via his involvement with NOB."
"[T]he probable cause standard is not a high bar," United
States v. Sheehan, 70 F.4th 36, 44 (1st Cir. 2023) (internal
quotation marks omitted) (quoting United States v. Adams, 971 F.3d
22, 32 (1st Cir. 2020)), as it "requires only 'the kind of fair
probability on which reasonable and prudent [people,] not legal
technicians, act,'" id. (alteration in original) (internal
quotation marks omitted) (quoting Florida v. Harris, 568 U.S. 237,
244 (2013)). "In assessing whether a search warrant affidavit
establishes probable cause, the court 'consider[s] . . . the
"totality of the circumstances,"'" United States v. Sylvestre, 78
F.4th 28, 33 (1st Cir. 2023) (alteration and omission in original)
(quoting United States v. Tiem Trinh, 665 F.3d 1, 10 (1st Cir.
2011)), based on "the 'facts and supported opinions set out within
the four corners of the affidavit,'" Corleto, 56 F.4th at 175
- 13 - (internal quotation marks omitted) (quoting United States v.
Lindsey, 3 F.4th 32, 39 (1st Cir. 2021)). Under the Fourth
Amendment, "[a]n application for a warrant 'must demonstrate
probable cause to believe that (1) a crime has been
committed -- the "commission" element, and (2) enumerated evidence
of the offense will be found at the place searched -- the so-called
"nexus" element.'" United States v. Roman, 942 F.3d 43, 50 (1st
Cir. 2019) (quoting United States v. Dixon, 787 F.3d 55, 59 (1st
Cir. 2015)).
The district court correctly reasoned that probable
cause for Cortez's involvement in a RICO conspiracy was established
in part by the June affidavit's
descriptions of evidence suggesting: Cortez was residing at an apartment rented by an NOB member (instead of at his family's home in Randolph); Cortez was arrested with two other members of NOB for sex trafficking in 2017; his brother was believed to supply NOB's drug trafficking operation; and electronic communications showed Cortez discussed drug trafficking with at least two NOB members, including one of his 2017 sex-trafficking co-defendants. In addition, [Detective Ball] summarized the types of crimes he and other officers had linked to NOB during their two-year investigation . . . .
(Footnotes omitted.)
The June affidavit additionally described evidence that
"Cortez ha[d] supported other NOB members/associates by concealing
and destroying evidence of crimes, including murder and
- 14 - kidnapping, committed by the group." This includes evidence that
Cortez had acted to hide from law enforcement the Honda Fit
associated with an NOB-related murder; and that Cortez had set
fire to a Honda Accord, which had been stolen by NOB
members/associates and had been involved in a kidnapping, in order
to "hinder law enforcement efforts to recover forensic evidence
from the vehicle." The June affidavit also described evidence
that Cortez had been carrying a bag containing eighteen grams of
fentanyl when he fled from law enforcement officers, and that this
fentanyl had been acquired from an NOB member.
The district court did not err in its conclusion that,
under the probable cause standard, "[n]o more [than this] was
required." Cortez argues that the June affidavit did not
sufficiently demonstrate that his actions satisfied each of the
elements of a RICO conspiracy, but this argument misunderstands
the probable cause standard.1 See Jordan v. Town of Waldoboro,
1 Cortez also argues that the government's decision not to indict him for a RICO conspiracy "strongly suggests" an absence of probable cause, but he does not cite any caselaw which supports this reasoning. Nor does the argument have merit. He additionally suggests that this court should find an absence of probable cause because "the warrant in this case issued at the tail end of a years-long investigation and mere weeks before the first indictment was returned." Cortez does not explain, however, why this timing should undermine the Magistrate Judge's probable cause determination, nor does Cortez cite any caselaw indicating that such a factor on its own should be treated as dispositive. Cf. United States v. Vigeant, 176 F.3d 565, 573-74, 574 n.15 (1st Cir. 1999) (holding that "[t]he fortuitous timing of the warrant application -- which appears like a last minute attempt to
- 15 - 943 F.3d 532, 542 (1st Cir. 2019) ("Probable cause does not require
proof of guilt beyond a reasonable doubt, but 'only an objectively
reasonable basis for believing that evidence of [the crime] can
likely be found at the described locus at the time of the search.'"
(alteration in original) (internal quotation marks omitted)
(quoting United States v. Flores, 888 F.3d 537, 548 (1st Cir.
2018))), abrogated on other grounds by Thompson v. Clark, 596 U.S.
36 (2022). As the district court observed, a reviewing court
"generally must defer to [the magistrate judge's] evaluations.
[United States v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005).]
Cortez has provided no basis to depart from that general rule and
set aside the Magistrate Judge's assessment here."2 We agree.
3. Nexus to Attleboro Apartment
Cortez next argues that the June affidavit did not
provide a sufficient factual basis for its assertion that there
implicate [the defendant] before [an] indictment [of another individual] was unsealed -- and the affidavit's juxtaposition of the scanty information about [the defendant] with the voluminous information about the already-indicted [individual] both . . . raise questions about the officer's objective good faith." (emphasis added)). 2 Cortez implies that the district court erred in deferring to the Magistrate Judge. Such deference, however, was appropriate. See Zayas-Diaz, 95 F.3d at 111 ("Reviewing courts, including both the district court and the court of appeals, must accord 'considerable deference' to the 'probable cause' determination made by the issuing magistrate."); cf. United Roman, 942 F.3d at 53 (holding that the court "afford[s] no deference to the magistrate judge's determination" because "the affidavit . . . contained 'reckless misstatements'" (quoting Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005)).
- 16 - was probable cause to believe that Cortez resided in the Attleboro
apartment and that Depina allowed Cortez to stay there.3
We disagree. We owe deference to the determination of
the Magistrate Judge who issued the warrant, and conclude that the
June affidavit adequately supported the conclusion that Cortez did
reside in the Attleboro apartment. The June affidavit included,
in direct support of Ball's assertion that Cortez resided there,
GPS data and photographic evidence gathered from Cortez's cell
phones, investigators' direct observations of Cortez and his
vehicle at the location, and a link between Cortez and the owner
of the apartment, who did not live there.4 The June affidavit
further provided Detective Ball's view, based on his training and
experience, that gang members maintain gang-related materials,
including photos and weapons, at their residences, and Cortez does
not take issue with this portion of the affidavit.
3 Cortez does not argue that if there was probable cause to believe that he resided in the Attleboro apartment, the district court erred in finding probable cause to believe that evidence of the offense would be found there. See Brox v. Hole, 83 F.4th 87, 97 n.2 (1st Cir. 2023) ("[A]rguments not made in an opening brief on appeal are deemed waived."). 4 Cortez incorrectly argues the June affidavit asserted that law enforcement observed Cortez at the Attleboro apartment only once during the two weeks prior to submission of the warrant application, and his vehicle only once during the week leading up to the search. This mischaracterizes the record. Rather, the affidavit stated that "Cortez was observed at [the apartment] within the last two weeks," and that his vehicle was "most recent[ly] observ[ed] . . . within the last week."
- 17 - Cortez is incorrect in his argument that the affidavit
fell short because it did not specify the precise dates, times of
day, or lengths of time during which Cortez was located at the
apartment. Such a degree of specificity is not required.5 See
United States v. Barbosa, 896 F.3d 60, 68 (1st Cir. 2018) ("[T]here
is no requirement that every shred of known information be included
in a warrant affidavit . . . ."); United States v. Clark, 685 F.3d
72, 78 (1st Cir. 2012) ("In the search-warrant context, it is not
necessary for an affiant, in describing supporting evidence, to be
precise to the point of pedantry.").
The June affidavit moreover adequately supported
Detective Ball's contention that the owner of the apartment,
Depina, "allow[ed] Cortez to stay" at the Attleboro apartment,
which in turn supported that Cortez lived there even though he did
not own the apartment. Detective Ball cited evidence that while
Depina owned the Attleboro apartment, he was not residing there,
and further noted that Depina, "an NOB member/associate, [was] one
of Cortez's close associates."
The information contained in the May affidavit that
Cortez was then believed to be living elsewhere does not undermine
the June affidavit's assertion of probable cause that Cortez was
5 We reject for the same reason Cortez's argument that, in failing to explain how Cortez was identified in the video footage, the June affidavit "omitted material information."
- 18 - by then residing at the Attleboro apartment. Although the May
affidavit characterized the location in Randolph as Cortez's home,
Detective Ball in the June affidavit explained that investigators
had gathered more evidence after the May search warrant had been
executed which indicated that Cortez in fact resided at the
Attleboro apartment. Cf. United States v. Lucca, 377 F.3d 927,
931 (8th Cir. 2004) ("[A]n ongoing investigation may require
changes to an initial warrant affidavit or the issuance of more
than one search warrant.").
Nor did the district court, as Cortez maintains,
erroneously rely on information contained in the May affidavit to
support the court's approval of the June warrant application. The
court, in its analysis of the June warrant application, referred
to information contained in the May affidavit, but correctly noted
that the June affidavit also contained this information.
4. Challenge to Denial of Franks Hearing
The district court did not err in holding that Cortez
was not entitled to a Franks hearing on his motion. There was no
clear error in its determination that Cortez had not made the
necessary showing of any falsity.
"Under the Supreme Court's decision in Franks v.
Delaware, 438 U.S. 154 (1978), a defendant may obtain an
evidentiary hearing 'to challenge the truthfulness of statements
made by law enforcement agents in a search warrant
- 19 - affidavit' . . . ." United States v. Pérez-Greaux, 83 F.4th 1, 32
(1st Cir. 2023). A defendant is entitled to a Franks hearing only
if they make "a substantial preliminary showing . . . that a false
statement or omission in the affidavit was made knowingly and
intentionally or with reckless disregard for the truth and that
the false statement or omission was necessary to the finding of
probable cause." Veloz, 948 F.3d at 427 (internal quotation marks
omitted) (quoting United States v. Arias, 848 F.3d 504, 511 (1st
Cir. 2017)). Because "[t]here is . . . a presumption of validity
with respect to the affidavit supporting the search warrant,"
United States v. Rumney, 867 F.2d 714, 720 (1st Cir. 1989) (quoting
Franks, 438 U.S. at 171-72), such a showing must consist of more
than a mere conclusory statement that the affidavit is false, see
Pérez-Greaux, 83 F.4th at 33. Rather, "[t]here must be allegations
of deliberate falsehood or of reckless disregard for the truth,
and those allegations must be accompanied by an offer of proof."
Id. (quoting United States v. Southard, 700 F.2d 1, 8 (1st Cir.
1983)). "[A] flat denial alone" is not sufficient to "'demonstrate
a substantial possibility of affiant perjury.'" Id. (quoting
Southard, 700 F.2d at 10).
Cortez contends that he was entitled to a Franks hearing
based on two statements made in his counsel's affidavit. Cortez
first points to his counsel's statement that he was "unable to
identify the person setting fire to the vehicle" from the video
- 20 - footage produced in discovery. This argument misses the point, as
the government asserted that its identification of Cortez was based
on the clothing worn by the person in the video, and counsel did
not contest this representation.6 Beyond that, this statement by
Cortez's counsel was not accompanied by any offer of proof that
law enforcement's identification of Cortez was false, nor that it
was intentionally or recklessly so.7
The second statement pointed to by Cortez -- that his
counsel could not locate text messages between Moses Cabral, named
in the superseding indictment, and Cortez sent on April 28, 2020,
which referred to the sale of fentanyl -- fares no better. Cortez
did not ever make an offer of proof in support of this statement.
Nor did the statement allege a "deliberate falsehood
or . . . reckless disregard for the truth." Pérez-Greaux, 83
F.4th at 33 (quoting Southard, 700 F.2d at 8); see also Southard,
6 The record does not support Cortez's argument that the district court relied on this "extraneous information" as part of its probable cause determination.
7 We reject Cortez's argument that the district court should not have considered as part of its Franks analysis the government's explanation that the video footage identification was based on clothing. This explanation was proffered by Cortez's counsel without contest. Even in the absence of this explanation, Cortez has failed to make the necessary substantial preliminary showing for a Franks hearing. See United States v. Graf, 784 F.3d 1, 8 (1st Cir. 2015) (reviewing whether defendant's "motion for a Franks hearing and his accompanying evidence were facially sufficient to make a substantial preliminary showing" without considering "any additional evidence or justification from the government").
- 21 - 700 F.2d at 10 (holding that the defendants' "alleg[ations] that
the affidavit contained an intentionally false statement" were
"conclusory and unsupported by any offer of proof," and so "d[id]
not demonstrate a substantial possibility of affiant perjury").
Moreover, Cortez did not argue before the district court
that, in the absence of either the video footage or the text
messages between himself and Cabral, "the affidavit's remaining
content [would be] insufficient to establish probable cause."8
United States v. Patterson, 877 F.3d 419, 424 (1st Cir. 2017)
(quoting Franks, 438 U.S. at 156) (holding that, to be entitled to
a Franks hearing, the "defendant must . . . make a substantial
showing that the 'allegedly false statement is necessary to the
finding of probable cause'" (quoting Franks, 438 U.S. at 156)).
IV.
We affirm the district court's decision denying Cortez's
motion to suppress evidence and request a Franks hearing.
Accordingly, we reject Cortez's challenge to his conviction.
8Cortez argued in his brief that the good-faith exception to the exclusionary rule does not apply here. Because we affirm on other grounds, we do not address this argument.
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