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
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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 
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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," 
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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.
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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 
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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 
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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,
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the apartment which was the target of the requested search. The 

affidavit stated:

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 
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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 
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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 
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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 
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"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
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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 
- 14 -

(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 
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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 
- 16 -

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)).
- 17 -

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." 
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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." 
- 19 -

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 
- 20 -

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 
- 21 -

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").
- 22 -

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.

8 Cortez 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.