United States v. Delgado

• Court: Court of Appeals for the Second Circuit
• Decided: October 25, 2021
• Docket: 21-19-cr
• Status: Unpublished

Opinion

21-19-cr United States v. Delgado

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of October, two thousand twenty-one.

PRESENT: Dennis Jacobs, Steven J. Menashi, Circuit Judges Lewis A. Kaplan, District Judge. * ____________________________________________

United States of America,

Appellee,

v. No. 21-19

*Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York, sitting by designation. Juan Torres-Fernandez, AKA Johnny, Luis Alamo,

Defendants,

Carlos Delgado, AKA Los,

Defendant-Appellant.

____________________________________________

For Appellee: Natasha M. Freismuth, Esq., Marc H. Silverman, Esq., for Leonard C. Boyle, Esq., Acting United States Attorney for the District of Connecticut, New Haven, CT

For Appellant: Carlos Delgado, pro se, Berlin, NH

Appeal from a judgment of the United States District Court for the District

Court for the District of Connecticut (Hall, J.).

Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Carlos Delgado, proceeding pro se in the district court and on appeal, was

convicted of drug trafficking and possessing a firearm as a felon. In 2018, Delgado

oversaw an operation that used the U.S. Postal Service to send drugs and drug

proceeds between Puerto Rico and Connecticut. Following an investigation, a

2 magistrate judge authorized an arrest warrant for Delgado, and search warrants

for his home and vehicles, based on an affidavit submitted by a DEA task force

officer, which relied largely on information that one of Delgado’s associates

provided. Officers executing the warrants recovered more than $110,000 in cash

from Delgado’s home, along with more than one kilogram of heroin and five guns.

Before trial, Delgado filed a motion for a hearing under Franks v. Delaware, 438 U.S.

154 (1978), to challenge the validity of the warrants, arguing that the affidavit in

support of the warrants deliberately or recklessly misled the magistrate judge. He

also moved to suppress evidence recovered from his home, arguing that the search

warrant was not supported by probable cause.

The district court denied both motions, reasoning that law enforcement

adequately corroborated the informant’s tips and that the warrant was valid and

supported by probable cause. Delgado was tried, convicted, and sentenced. He

timely filed this appeal. We assume the parties’ familiarity with the underlying

facts, the procedural history, and the issues on appeal.

I

“[T]he purpose of a Franks hearing is for a defendant to demonstrate that

statements in an affidavit intentionally or recklessly misled a district court.” United

3 States v. Thomas, 788 F.3d 345, 349 n.6 (2d Cir. 2015). To show entitlement to a

hearing under Franks, a defendant must make a “substantial preliminary

showing” that (1) any inaccuracies in the affidavit supporting the warrant were

made “knowingly and intentionally, or with reckless disregard for the truth,” and

(2) such inaccuracies were “necessary to the finding of probable cause.” Franks, 438

U.S. at 155-56. We have not established the proper standard of review for

evaluating the denial of a Franks hearing. See United States v. Falso, 544 F.3d 110,

126 n.21 (2d Cir. 2008) (noting the lack of clarity as to the appropriate standard).

But even after conducting a de novo review, we conclude that the district court did

not err by denying Delgado’s motion for a Franks hearing.

As to the first prong, “a presumption of validity” attaches to an “affidavit

supporting [a] search warrant” and therefore general “[a]llegations of negligence

or innocent mistake are insufficient” to establish entitlement to a hearing. Franks,

438 U.S. at 171. The inquiry, moreover, focuses exclusively on the statements “of

the affiant, not of any nongovernmental informant.” Id. Delgado does not make

the required showing. He asserts on appeal—as he did before the district court—

that paragraph 48 of the DEA task officer’s affidavit misleadingly alleged that he

4 possessed an intercepted parcel containing one kilogram of cocaine. That

paragraph read as follows:

On June 26, 2018, the Honorable U.S. Magistrate Judge Robert A. Richardson also issued a search warrant for a second parcel that was sent from Puerto Rico and addressed [to] Ryan PEHOWDY, 2979 Main Street, Coventry, Connecticut. The Priority Mail parcel displayed Priority Mail label number 9505 5103 3621 8171 2762 57, handwritten Priority Mail address label addressed to RYAN PEHOWDY, 2979 MAIN ST. COVENTRY, CT 06238, and a return address of NICOL MARTINEZ, PORTICOS DE GUAYNABO EDIFICIO 4 APT #202 GUAYNABO, P.R. 00959. The subsequent execution of that search warrant revealed that the parcel in question contained approximately 1 kilogram of suspected cocaine. A field test conducted on a portion of the suspected cocaine returned a positive reaction for the presence of cocaine. We agree with the district court that this paragraph did not suggest that Delgado

personally possessed the parcel; it did not even reference Delgado. Instead, as the

district court correctly observed, the inclusion of paragraph 48 demonstrates

generally that Delgado and his associates used the U.S. Postal Service to ship

illegal drugs from Puerto Rico to Connecticut roughly two weeks before law

enforcement sought the warrants, and the subsequent search of this parcel

corroborated the informant’s report alleging the same. Accordingly, Delgado

failed to raise an inference that paragraph 48 contained a “deliberate falsehood”

or was prepared with a “reckless disregard for the truth.” Id.

5 Even if paragraph 48 had implied that Delgado personally possessed the

parcel, the paragraph was not “necessary to the finding of probable cause.” Id. at

156. In arguing to the contrary, Delgado asserts that the affidavit’s remaining

portions consisted of “unsubstantiated hearsay statements from an unproven

confidential source and officer training and experience opinions.” Appellant’s Br.

28. That is inaccurate. Among other things, the affidavit alleged the following three

examples of Delgado’s involvement in the drug trafficking organization:

(1) Delgado’s presence—confirmed by cellphone location data—near a

Connecticut address the informant supplied to which a package was shipped from

Puerto Rico; (2) Delgado’s presence—also confirmed by cellphone location data—

near a Connecticut post office at which law enforcement intercepted a Puerto Rico-

bound parcel containing $26,800; and (3) law enforcement’s subsequent

interception of $9,900 shipped from Delgado’s Connecticut address to Puerto Rico

using the same name as that used to ship the $26,800.

Delgado next attacks the affidavit’s reliance on the informant’s information

that was not corroborated. This challenge has no merit. As the district court

correctly observed, law enforcement independently corroborated several tips that

the informant had provided, including: (1) his or her provision of Delgado’s

6 personal telephone number, which officers confirmed with personal observations

of Delgado and cellphone location data; (2) Delgado’s use of a black Cadillac in his

operations; and (3) officers’ observation of Delgado’s truck near an informant-

provided address after the informant told the officers that he notified Delgado

about a package delivery. While the investigators did not corroborate all of the

information provided by the informant, we have recognized that “[i]f a substantial

amount of information from an informant is shown to be reliable because of

independent corroboration, then it is a permissible inference that the informant is

reliable and that therefore other information that he provides, though

uncorroborated, is also reliable.” United States v. Wagner, 989 F.2d 69, 73 (2d Cir.

1993). The district court therefore correctly found that the affidavit adequately

established the information’s credibility.

Delgado’s other lines of attack on the informant’s reliability are unavailing.

First, Delgado argues that the affidavit omitted certain details about packages the

informant received, such as tracking numbers and hard copies of recipient

signatures. As the district court explained, this level of detail is not necessary to

establish probable cause. Delgado also complains about the absence of any

information related to a canine sniff of the package Delgado retrieved from the

7 informant. There is a simple reason for this omission: investigators did not conduct

a canine sniff of the package.

In sum, Delgado’s attacks fall short of showing that the affiant falsely—or

in reckless disregard of the truth—omitted information material to the evaluation

of the informant’s credibility. The district court therefore properly denied

Delgado’s motion to hold a Franks hearing.

II

The defendant also filed a pro se motion to suppress the evidence recovered

from his house, arguing that the affidavit failed to establish probable cause. The

district court denied this motion, holding that the warrants were supported by

probable cause.

We review the denial of a motion to suppress “for clear error as to factual

findings, giving special deference to findings that are based on determinations of

witness credibility, and de novo as to questions of law.” United States v. Lyle, 919

F.3d 716, 727 (2d Cir. 2019) (internal quotation marks omitted). Probable cause is

“a fluid concept,” and in deciding whether to issue a search warrant, “[t]he task of

the issuing magistrate is simply to make a practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before him, including

8 the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a crime will be found in a

particular place.” Illinois v. Gates, 462 U.S. 213, 232, 238 (1983).

Delgado characterizes the task officer’s affidavit as “bare bones” and asserts

that it was based on the informant’s “unsubstantiated conclusions of narcotics[]

activity using the US mail.” Appellant’s Br. 60, 63. The affidavit relied largely on

the informant’s tips, but as detailed above, the officers corroborated several of

these tips, and the district court therefore drew the “permissible inference that the

informant [wa]s reliable” and that “other information that he [or she] provide[d],

though uncorroborated, [wa]s also reliable.” Wagner, 989 F.2d at 73. In addition to

the evidence summarized above, the affidavit also described the officers’

observation of Delgado returning home after retrieving a package from the

informant that was shipped from Puerto Rico; a traffic stop of one of Delgado’s

associates after the associate left Delgado’s residence during which law

enforcement recovered cocaine; and the officers’ repeated observation of vehicles

Delgado used to transport postal packages that were parked near Delgado’s home,

including one that contained a dashboard trap. The affidavit contained sufficient

9 evidence to establish probable cause and the district court properly denied

Delgado’s motion to suppress.

In arguing to the contrary, Delgado asserts that the evidence that formed the

basis of the search warrant was stale because the alleged narcotics activity at his

residence occurred more than four weeks prior to the issuance of the challenged

search warrant. There is “no bright-line rule for staleness.” United States v.

Raymonda, 780 F.3d 105, 114 (2d Cir. 2015). Instead, courts evaluate “the facts of

each case,” looking specifically to “the age of the facts alleged and the nature of

the conduct alleged to have violated the law.” Id. (internal quotation marks

omitted). When, as in this case, there is “a pattern of continuing criminal activity,

such that there is reason to believe that the cited activity was probably not a one-

time occurrence, the passage of time between the last alleged event and the

warrant application is less significant.” Id. (internal quotation marks omitted).

Here, the affidavit outlined evidence of Delgado’s shipment of drug proceeds from

his residence in the two weeks prior to the search warrant being issued. Under

these circumstances, we are not persuaded by Delgado’s staleness challenge.

10 * * *

We have considered Delgado’s remaining arguments, which we conclude

are without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court and DENY Delgado’s motion for summary reversal.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court