United States v. Lavone Ganithus Dixon, Jr.

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 13, 2022
• Docket: 21-6001
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0279n.06

No. 21-6001

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 13, 2022 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) LAVONE GANITHUS DIXON, JR., DISTRICT OF KENTUCKY ) Defendant-Appellant. ) OPINION ) )

Before: GIBBONS, ROGERS, and MURPHY, Circuit Judges.

ROGERS, Circuit Judge. This case concerns the validity of a search warrant issued by a

state court to search defendant Lavone Dixon, Jr.’s residence. The search of the residence led to

Dixon’s indictment on drug and firearm charges. The district court denied Dixon’s motion to

suppress the evidence recovered during that search, and Dixon was convicted and sentenced to

312 months’ imprisonment. Dixon brought this appeal arguing that the search warrant was invalid

because it had not been filed in a court before it was executed, and that in any event Dixon had

presented sufficient evidence requiring a hearing on whether the search warrant existed at the time

his residence was searched. The district court properly rejected both arguments.

I.

On Sunday, September 22, 2019, state law-enforcement officers executed a search warrant

on Dixon’s residence, where officers discovered four firearms, some ammunition, and three digital

scales. As a result of that search, a federal grand jury indicted Dixon in January 2020 on charges No. 21-6001, United States v. Dixon

of drug trafficking and being a felon in possession of a firearm. Dixon moved to suppress the

evidence seized during the search and requested an evidentiary hearing, arguing that law

enforcement did not obtain a warrant to search his residence until after the search had already been

conducted. Dixon asserted that the search warrant produced by the Government was not authentic

and may have been created as late as June 2020, months after the search.

The district court referred Dixon’s motion to the magistrate judge. The magistrate judge

first concluded that the standard in Franks v. Delaware, 438 U.S. 154 (1978)—which establishes

the burden to justify an evidentiary hearing concerning the falsity of statements in search-warrant

affidavits—logically applied to Dixon’s motion because Dixon claimed that the search warrant

itself was fraudulently created. Applying the Franks standard to Dixon’s request for an evidentiary

hearing, the magistrate judge concluded that Dixon’s motion did not make a sufficient offer of

proof for his allegations that the search warrant had been fraudulently created. As a result, the

magistrate judge recommended denying Dixon’s request for an evidentiary hearing and denying

Dixon’s motion to suppress.

Dixon filed three objections to the magistrate judge’s report and recommendation: (1) the

magistrate judge incorrectly concluded that the Franks standard applied to Dixon’s case; (2) Dixon

was entitled to a hearing under Franks anyway because he presented a certification from the

Madison County Clerk stating that there was no search warrant in Dixon’s state-court file 20-F-

139, and Dixon submitted metadata that purportedly indicated that the search of Dixon’s residence

took place on September 21, 2019, which was the day before the search warrant was signed; and

(3) Dixon objected “generally to the extent necessary to preserve his right to appeal any denial of

his motion to suppress and the denial of his request for an evidentiary hearing.”

-2- No. 21-6001, United States v. Dixon

The district court first rejected Dixon’s argument concerning the Franks standard because

Dixon did not explain the objection, and in any event because the district court agreed that Franks

logically applied to Dixon’s request for an evidentiary hearing. The district court next rejected

Dixon’s argument that he was entitled to an evidentiary hearing. The district court considered the

metadata and concluded that the metadata did not suggest that the search took place on September

21, 2019, the day before the search warrant was signed by a judge. Rather, the district court agreed

with the Government’s explanation that the metadata suggested that the video recorder was last

charged on September 21, 2019. Further, the court pointed out that the district-court record

contained file-stamped copies of both the search-warrant affidavit and the search warrant, and the

record also contained the search-warrant return. Finally the district court rejected Dixon’s last

objection because general objections are “tantamount to a complete failure to object.” In light of

this information, the district court overruled each of Dixon’s objections and adopted the magistrate

judge’s recommendation to deny Dixon’s motion to suppress and his request for an evidentiary

hearing. Following his conviction and sentencing, Dixon timely appealed.

II.

A. Dixon’s argument that the search warrant was not filed before it was executed.

On appeal, Dixon argues that the search of his residence on Sunday, September 22, 2019,

was warrantless because the search warrant—though signed by a state-court judge on September

22, 2019—was not filed in the state-court record until Monday, September 23, 2019. However,

Dixon forfeited this argument because he did not raise it in his objections to the magistrate judge’s

recommendation, and the district court therefore never considered it. We have consistently refused

to consider arguments raised for the first time on appeal “when a defendant does ‘not raise [those]

argument[s] in his objections to the magistrate’s report and recommendation.” Berkshire v. Dahl,

-3- No. 21-6001, United States v. Dixon

928 F.3d 520, 530 (6th Cir. 2019) (quoting Kensu v. Haigh, 87 F.3d 172, 176 (6th Cir. 1996)); see

also Peoples v. Hoover, 377 F. App’x 461, 462–63 (6th Cir. 2010).

Dixon acknowledges that he did not raise this argument in his objections below but

contends that he can raise “on appeal any relevant arguments demonstrating that the search of his

residence was warrantless.” In support, Dixon points to cases where “a prevailing party may

assert, on appeal, any grounds in support of the judgment.” See Reply br. at 8 (emphasis added)

(citing cases such as Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970)). To be sure, we may

affirm a district court on alternative grounds because of the longstanding principle that “[w]here

the decision below is correct it must be affirmed by the appellate court though the lower tribunal

gave a wrong reason for its action.” J.E. Riley Inv. Co. v. Comm’r, 311 U.S. 55, 59 (1940) (citation

omitted). That principle is inapplicable here, however, because Dixon is seeking to reverse the

district court based on a non-jurisdictional argument that the court was never asked to consider.

In any event, Dixon’s argument is entirely without merit. Even assuming that the failure

to file a search warrant before executing the warrant violated state law—a dubious proposition

itself—Dixon cites no case for the proposition that the execution of a search warrant before it is

filed violates Fourth Amendment rights. Dixon’s proposed rule also runs counter to logic: the

Government would be able to execute a warrant only when obtained during business hours, and

that rule would necessarily inhibit the Government’s ability to act quickly to prevent the potential

destruction of evidence. Moreover, a violation of the Fourth Amendment that would require the

suppression of evidence is judged by federal constitutional standards. United States v. Abernathy,

843 F.3d 243, 249 (6th Cir. 2016). As our sister circuit has explained, “[e]vidence seized by state

officers in conformity with the Fourth Amendment will not be suppressed in a federal prosecution

simply because the underlying search warrant failed to conform to state law.” United States v.

-4- No. 21-6001, United States v. Dixon

Dishman, 377 F.3d 809, 811 (8th Cir. 2004). Accordingly, Dixon’s claim fails because he cannot

show that the failure to file the search warrant in the state court before executing the warrant would

violate the Fourth Amendment.

Dixon also asserts for the first time in his reply brief that the search warrant was invalid

because it contained a judge’s signature but not the seal of the court. The Government did not

have the opportunity to respond to that argument, and we consistently decline to entertain

arguments raised for the first time in a reply brief. Bard v. Brown County, 970 F.3d 738, 751 (6th

Cir. 2020). Accordingly, Dixon has forfeited that argument.

B. Dixon’s argument that no search warrant was yet in existence at the time of the search.

Dixon next asserts that he was entitled to an evidentiary hearing on whether the search

warrant actually existed before officers searched Dixon’s residence. The Government does not

argue that the search would have been permissible under the Fourth Amendment even if the search

warrant did not exist by the time of the search, but instead contends that the officers obtained a

warrant before searching Dixon’s residence. We review the denial of a request for an evidentiary

hearing for abuse of discretion. United States v. Brika, 416 F.3d 514, 529 (6th Cir. 2005). Dixon

does not show that there was a question of fact about the existence of the search warrant at the

time of the search. The district court therefore did not abuse its discretion in denying Dixon’s

request for an evidentiary hearing.

Dixon first reasserts an argument made below that the search warrant was fabricated after

the search because no search warrant was filed in the state court. In support, Dixon provided a

certification from the Madison County Clerk that Dixon’s state-court file did not contain a search

warrant on June 11, 2020, nearly nine months after the search. As the district court explained,

however, the Government provided, in its response to the motion to suppress, copies of the search-

-5- No. 21-6001, United States v. Dixon

warrant affidavit and the search warrant. Both bear a file stamp, including the Madison County

Clerk’s name, indicating that the two documents were filed on September 23, 2019. “An

evidentiary hearing is required only if the motion is sufficiently definite, specific, detailed, and

non-conjectural to enable the court to conclude that contested issues of fact going to the validity

of the search are in question.” United States v. Ickes, 922 F.3d 708, 710 (6th Cir. 2019) (quoting

United States v. Abboud, 438 F.3d 554, 557 (6th Cir. 2006)). Because the search warrant bears a

stamp that it was in fact filed, the absence of the warrant in Dixon’s state-court file in particular

does not create a contested question of fact about whether the search warrant was filed at all. The

district court therefore did not abuse its discretion in denying Dixon an evidentiary hearing on that

basis.

Dixon’s briefing on appeal refers to two more bases upon which he argues the district court

should have concluded that the search warrant was fabricated after the search of Dixon’s residence.

Dixon presented these arguments to the magistrate judge, and after the magistrate judge

recommended denying Dixon’s motion to suppress, Dixon did not raise these arguments in his

objections to the report and recommendation. Arguments not raised as objections to the magistrate

judge’s report and recommendation are forfeited, Berkshire, 928 F.3d at 530, and we need not

consider them on appeal.

In any event, neither of Dixon’s arguments is persuasive. First, Dixon asserts that the

Government did not mention the search warrant and affidavit in initial discovery, that the

Government failed to produce the documents for 250 days, and that the search warrant and affidavit

that were initially produced by the Government did not include a file stamp. While the

Government may have failed to promptly disclose the copies of the state-court search warrant and

affidavit that were file stamped, the Government subsequently corrected these mistakes by

-6- No. 21-6001, United States v. Dixon

providing the file-stamped documents. The delay does not suggest that the documents were

fabricated or that the documents did not exist at the time of the search.

Second, Dixon asserts that the documents were a cut-and-paste job because the search-

warrant affidavit contains X’s instead of the standard checkmarks that would be populated by

filling out the affidavit template form, and the search warrant had different fonts for the description

of the affiant than the date and name of the court. While Dixon has pointed to typeface

inconsistencies in the preparation of the search warrant and affidavit, these inconsistencies

themselves do not suggest that the search warrant was made months after the search. In light of

the fact that the documents bear the file stamp of the Madison County Clerk, dated the Monday

following the search, Dixon’s identified inconsistencies do not create a contested question of fact

about whether the search warrant existed at the time of the search.

Dixon also asserts for the first time in his reply brief that one of the Government’s exhibits,

a chain-of-custody document, suggests that Dixon’s firearm was seized before the affidavit was

signed, and the search warrant therefore must not have existed before officers searched Dixon’s

residence. Because we consistently decline to entertain arguments raised for the first time in a

reply brief, Bard, 970 F.3d at 751, Dixon has forfeited that argument.

In reaching the conclusion that the district court did not abuse its discretion in denying

Dixon an evidentiary hearing, we do not rely on the district court’s application of the Franks

standard to Dixon’s claim. Because Dixon was not entitled to an evidentiary hearing even under

the less-demanding traditional standard restated in Ickes, 922 F.3d at 710, we need not address

whether the district court correctly concluded that Franks should apply to Dixon’s claim.

Dixon next contends that his federal criminal proceedings suffered from structural error

because the state search warrant was not filed in the federal-district-court record. This argument

-7- No. 21-6001, United States v. Dixon

was not made in the district court. In any event, as the Government points out, this argument is

meritless because the search warrant was included as an exhibit to both Dixon’s own motion to

suppress and to the Government’s response.

Finally, Dixon also raised several arguments pro se. However, we decline to address these

pro se arguments because Dixon is represented by counsel on this appeal. We have consistently

declined to review pro se arguments in cases where the defendant is already represented by

counsel, United States v. Williams, 641 F.3d 758, 770 (6th Cir. 2011); United States v.

Montgomery, 592 F. App’x 411, 415–16 (6th Cir. 2014).

III.

For the foregoing reasons, we affirm the district court’s judgment.

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