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United States v. Harris



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX 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 11 th day of July, two thousand

eighteen.

PRESENT: DENNIS JACOBS,

REENA RAGGI,

PETER W. HALL,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

UNITED STATES OF AMERICA,

Appellee,

‐ v. ‐ 16

‐ 3246

WILLIE HARRIS,

Defendant

‐ Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X2 FOR DEFENDANT

‐ APPELLANT: BRYAN S. OATHOUT, Law Office of

Bryan S. Oathout; Rochester, New

York.

FOR APPELLEE: MARY C. BAUMGARTEN, Assistant

United States Attorney, for James P.

Kennedy, Jr., United States Attorney

for the Western District of New York;

Buffalo, New York.

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

Western District of New York (Wolford, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court is

AFFIRMED

.

Willie Harris appeals from a judgment entered September 16, 2016 in the

United States District Court for the Western District of New York (Wolford, J.)

convicting him after a jury trial on one count of possession of cocaine with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c); one count of

possession of a firearm and ammunition by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e); and one count of possession of an unregistered

short

‐ barreled shotgun, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and

5871. He was sentenced principally to 115 months’ imprisonment, to be followed

by six years of supervised release. We assume the parties’ familiarity with the

underlying facts, the procedural history, and the issues presented for review.

1

. Harris argues that the district court erred in failing to suppress evidence

seized from his apartment pursuant to a search warrant.

A June 2014 warrant was issued to search Harris’ apartment at 49 Troup

Street (Apartment 21) in Rochester, New York for evidence related to a human

‐ trafficking investigation. The search warrant was based on an affidavit prepared

by FBI Special Agent Barry Couch. The officers found no evidence of human

trafficking, but during the search law enforcement officers found (among other

things) a short

‐ barreled shotgun, ammunition, cocaine, money, a digital scale,3 and small plastic baggies. Harris was charged on the basis of the evidence seized

during the arrest.

Harris’s suppression motion argued that “the search warrant affidavit

contained incomplete and inaccurate information.” App’x 231 (internal

quotation marks omitted). In particular, Harris submitted the affidavit of Sam

DiMaggio, the building superintendent, who averred that he did not make the

statements attributed to him in the search warrant affidavit. On the basis of this

evidence, Magistrate Judge Feldman conducted a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978). Judge Feldman issued a Report and

Recommendation recommending that the motion to suppress be denied, and the

district court adopted it in its entirety.

“On appeal from a district court’s ruling on a motion to suppress evidence,

we review legal conclusions de novo and findings of fact for clear error.” United

States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015) (internal quotation marks

omitted). 1 Reversal for clear error is appropriate if after reviewing the record we

are “left with the definite and firm conviction that a mistake has been

committed.” Id. at 110. “We pay special deference to the district court’s factual

determinations going to witness credibility.” Id. at 108 (internal quotation marks

omitted).

“[A] district court may not admit evidence seized pursuant to a warrant if

the warrant was based on materially false and misleading information.

. . . [M]aterially misleading omissions as well as misrepresentations may be

challenged by the defense.” United States v. Levasseur, 816 F.2d 37, 43 (2d Cir.

1987) (citing Franks v. Delaware, 438 U.S. 154 (1978)). “[T]o suppress evidence

obtained pursuant to an affidavit containing erroneous information, the

defendant must show that: (1) the claimed inaccuracies or omissions are the

result of the affiant’s deliberate falsehood or reckless disregard for the truth; and

(2) the alleged falsehoods or omissions were necessary to the issuing judge’s

1 We have yet to decide whether, in reviewing a district court’s decision on a

motion to suppress evidence, we should view the evidence in a light most

favorable to the prevailing party or simply review for clear error. Id. at 110.

Because we conclude that Harris’ argument fails under either test, we need not

(and do not) decide the question here.4 probable cause or necessity finding.” United States v. Rajaratnam, 719 F.3d 139,

146 (2d Cir. 2013) (internal quotation marks and alterations omitted).

Harris identifies several inconsistencies between the search warrant

affidavit and testimony elicited during the Franks hearing, and offers them as

proof that the affidavit included materially false and misleading information.

First, Agent Couch omitted from the search warrant application that two

witnesses failed initially to identify the photograph of Harris when they were

shown a photo array. One was CW1, a 16

‐ year old woman who told law

enforcement officers that an individual named “Shawn” (later identified as

Harris) was pimping her from his apartment at 49 Troup Street; the other was

DiMaggio (referred to as CW3 in the warrant affidavit). However, Agent

Couch’s testimony establishes that, after CW1 was urged to consider the

importance of answering truthfully, she immediately pointed to the photograph

of Harris in the photo array. Agent Couch also explained that he did not include

the identification procedures used with DiMaggio because it was not needed to

establish probable cause.

Second, Harris points to DiMaggio’s testimony contradicting statements

attributed to him in the search warrant affidavit. DiMaggio testified that

(contrary to the warrant affidavit) Harris never propositioned him with a young

woman for prostitution purposes and that he never saw a lot of men coming out

of Apartment 21. However, the magistrate court assessed DiMaggio’s credibility

and concluded that his “testimony was hardly a model of clarity or consistency”

and that it was “all over the place,” App’x 241; and the district court found that

“DiMaggio repeatedly contradicted himself,” Id. at 315. DiMaggio’s testimony is

further undermined by the testimony of Geeta Vijay, the property manager for 49

Troup Street: Vijay testified that she was present when DiMaggio gave his initial

statement to law enforcement, that DiMaggio had said that Harris was

“pimping” a young woman, and that DiMaggio explained that Harris had

offered the woman to him for sex. Id. at 137.

Finally, Harris contends that Vijay denied in her testimony that she

identified Harris in a photo array, and argues that Vijay’s testimony thus

contradicted statements attributed to her in the warrant affidavit. But Vijay in

fact testified that she did not remember being shown the photograph, which is not5 inconsistent with Agent Couch’s testimony that, at that time, Vijay identified

Harris in a photo array. See Id. at 138, 147

‐ 48.

Accordingly, the district court did not clearly err in finding that Agent

Couch’s testimony was “credible and fully consistent with the information he

utilized in his supporting affidavit.” Id. at 242; see also id. at 317. Harris has

failed to identify any evidence that the district court was misled by any

intentional or reckless statements or omissions in Agent Couch’s affidavit.

As to materiality, “the ultimate inquiry is whether, after putting aside

erroneous information and correcting material omissions, there remains a

residue of independent and lawful information sufficient to support a finding of

probable cause or necessity.” Rajaratnam, 719 F.3d at 146 (internal quotation

marks and alterations omitted). Even disregarding DiMaggio’s statements in the

search warrant affidavit, the affidavit was sufficient to support a finding of

probable cause: CW1 provided a detailed description of her prostitution

activities at 49 Troup Street (Apartment 21) and her relationship with “Shawn”;

and Agent Couch described the steps he undertook to identify Harris as the

individual living in that apartment and to match CW1’s description of Shawn

with Harris’ physical characteristics. See App’x 55

‐ 57. Accordingly, Harris has

failed to show that any of the purportedly inaccurate or incomplete information

was material to the finding of probable cause.

2. Harris argues that the district court committed procedural error by

applying a two

‐ level enhancement for obstruction of justice pursuant to United

States Sentencing Guidelines § 3C1.1.

“On review of a district court’s decision to enhance a defendant’s sentence

for obstruction of justice, we accept the court’s findings of facts unless they are

clearly erroneous

. . . [and] [w]e review de novo a ruling that the established facts

constitute obstruction of justice, giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Agudelo, 414 F.3d

345, 348 (2d Cir. 2005) (citations and internal quotation marks omitted).

A district court may apply a two

‐ level enhancement for obstruction of

justice if6 (1) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to

the investigation, prosecution, or sentencing of the instant offense of

conviction, and (2) the obstructive conduct related to (A) the

defendant’s offense of conviction and any relevant conduct; or (B) a

closely related offense[.]

U.S.S.G. § 3C1.1. Conduct covered under this section of the Sentencing

Guidelines includes perjury. United States v. Dunnigan, 507 U.S. 87, 93

‐ 94

(1993). “[B]efore applying an obstruction enhancement based on perjury, the

sentencing court must find by a preponderance of the evidence that the

defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the

intentional (b) giving of false testimony (c) as to a material matter.” United

States v. Thompson, 808 F.3d 190, 194

‐ 95 (2d Cir. 2015) (internal quotation marks

omitted). A perjury enhancement is appropriate if the defendant “gives false

testimony concerning a material matter with the willful intent to provide false

testimony, rather than as a result of confusion, mistake, or faulty memory.”

Dunnigan, 507 U.S. at 94. “Although separate and clear findings on each element

of perjury are preferred, a general finding of obstruction that tracks those factual

predicates necessary to support a finding of perjury will suffice.” United States

v. Shonubi, 998 F.2d 84, 88 (2d Cir. 1993).

At sentencing, the district court made detailed findings supporting its

conclusion that at trial Harris intentionally testified falsely as to several material

issues: he denied telling law enforcement agents that a “sawed

‐ off little thing”

was in his residence; he denied admitting to agents that there was crack cocaine

in his apartment, which he sold for money; he claimed that he used the baggies

in his apartment to discard marijuana seeds, rather than packaging drugs for

sale; he denied responsibility for allowing his nephew to store the shotgun in his

apartment; and he denied using the scale found in his apartment for drug

distribution. App’x 1052

‐ 53.

Most significantly, the district court determined that Harris committed

“clear cut perjury” when he testified that it was not his voice on a recorded

telephone call to his sister from the Monroe County jail. Id. at 1054. During the7 call, which was attributed to Harris through the inmate telephone system, Harris

stated that he was selling drugs and that he had been holding onto a shotgun for

his nephew, “Lil D.” Id. Harris testified that someone in jail was impersonating

him.

The district court concluded that Harris’ testimony was false by comparing

it to the testimony of law enforcement agents. The district court found that the

agents were credible, that Harris was not, and that the objective evidence (e.g.,

the gun, drugs, money, and digital scale found in Harris’ apartment)

corroborated the agents’ version of events. The district court also rejected Harris’

contention that his testimony was the result of confusion, mistake, or faulty

memory: even if Harris misunderstood the government’s questions on cross

‐

examination, as he contends on appeal, that does not account for Harris’

testimony that it was not his voice on the recorded telephone call admitting that

he possessed the gun and sold drugs. We find no error in the district court’s

conclusion that Harris intentionally gave false testimony on a material matter

and that a two

‐ level enhancement for obstruction of justice was warranted.

We have considered Harris’ remaining arguments and conclude that they

are without any merit. The judgment of the district court is AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK