United States of America v. CLYDE LEE MCKNIGHT, AKA Pizza

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLYDE LEE MCKNIGHT, AKA Pizza,
Defendant-Appellant.
No. 21-30189
D.C. No.
2:18-cr-00016-TSZ-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted August 17, 2023**
Anchorage, Alaska
Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.
Clyde McKnight was convicted at trial of possessing drugs with the intent to
distribute and being a felon in possession of a firearm. McKnight contends that the
district court erred by denying his motion to suppress and his motion to reopen his
Franks hearing. McKnight also challenges the district court’s application of a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
four-level aggravating role enhancement at sentencing. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
1. The district court properly denied McKnight’s motion to suppress.
We review the district court’s denial of a motion to suppress de novo and its
factual findings for clear error. United States v. Hylton, 30 F.4th 842, 846 (9th Cir.
2022). The Fourth Amendment requires suppression where the defendant shows,
by a preponderance of the evidence, that (1) a warrant affidavit contains a false
statement made knowingly and intentionally, or with reckless disregard for the
truth; and (2) the “allegedly false statement is necessary to the finding of probable
cause.” Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
The district court did not clearly err in finding that Agent Palermo made no
deliberately false statements to secure the warrants, nor did he act in reckless
disregard for the truth. McKnight contends that Palermo’s affidavit falsely stated
that police officers observed McKnight engaging in hand-to-hand transactions,
since the officers’ written reports did not expressly record any hand-to-hand
transactions by McKnight. See United States v. Baker, 658 F.3d 1050, 1053 (9th
Cir. 2011) (finding it reasonable to infer that police did not see incriminating
conduct where police report did not mention incriminating conduct), overruled on
other grounds by United States v. King, 687 F.3d 1189, 1189 (9th Cir. 2012). But
the district court credited Palermo’s testimony that police officers reported

-- 2 of 5 --

3
McKnight’s hand-to-hand transactions to him orally. McKnight presents no
evidence that undermines the district court’s finding that Palermo testified credibly
about the hand-to-hand statement. See United States v. Jordan, 291 F.3d 1091,
1100 (9th Cir. 2002) (“[We] give great deference to district court findings relating
to credibility.”). Indeed, Palermo’s contemporaneous handwritten notes
corroborate his testimony. At best, McKnight has pointed to conflicting evidence
as to the hand-to-hand statement. But “[c]lear error is not demonstrated by
pointing to conflicting evidence in the record.” United States v. Yi, 704 F.3d 800,
805 (9th Cir. 2013) (citation omitted).
And even if the statement about hand-to-hand transactions demonstrated an
intentional or reckless disregard for the truth, the statement is not material. See
United States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014) (holding that an
omission or misstatement is material only if the affidavit otherwise fails to
establish probable cause). Palermo set forth sufficient additional evidence in his
affidavit to establish probable cause for the two challenged warrants, even absent
the challenged statement.
2. The district court did not abuse its discretion in denying McKnight’s
motion to reopen his Franks hearing. McKnight contends that, because a
deliberate or reckless statement by a government official who is not the affiant can
be the basis for suppression under Franks, he has the right to examine the police

-- 3 of 5 --

4
officers whose statements were incorporated into the warrant affidavit. See United
States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992). But the district court never
denied McKnight this right. Rather, McKnight himself chose not to call the
officers whose statements provided the basis for the warrant affidavit.
Moreover, any error in declining to reopen the Franks hearing was harmless.
McKnight adduces no evidence that any officer would have contradicted Palermo’s
testimony. Indeed, the district court solicited declarations from the officers before
ruling on the motion to reopen, and the officers’ declarations were consistent with
Palermo’s testimony. Thus, there was no realistic possibility that reopening the
hearing would result in suppression.
3. The district court did not err in applying a four-level sentencing
enhancement based on McKnight’s role as “an organizer or leader of a criminal
activity.” U.S.S.G. § 3B1.1(a). A preponderance of evidence demonstrates that
McKnight “exercised some control over others involved in the commission of the
offense or was responsible for organizing others for the purpose of carrying out the
crime.” United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007) (citation
omitted).
Before sentencing, McKnight did not make any factual challenges to the
presentence report. The evidence indicates that McKnight profited far more than
his fellow co-defendants. See U.S.S.G. § 3B1.1 cmt. 4 (explaining that a “claimed

-- 4 of 5 --

5
right to a larger share of the fruits of the crime” indicates leadership). And
McKnight possessed significantly higher quantities of drugs than his co-
defendants—quantities that the government’s expert described as “wholesale” or
“dealer to another dealer” amounts—indicating that McKnight held a higher
position in the drug-trafficking organization. Accordingly, the district court
properly applied the aggravating role enhancement.
AFFIRMED.

-- 5 of 5 --