USA v. Davis

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ANTOINE DAVIS,
Defendant.
3:18-cr-00131-TMB-MMS
FINAL REPORT AND
RECOMMENDATION ON MOTION
FOR HEARING PURSUANT TO
FRANKS v. DELAWARE 1
I. 	MOTION PRESENTED.
On December 27, 2019, Defendant Antoine Davis (“Davis”), through counsel,
requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).2 [Dkt. 80]
[Franks Hearing]. On the same day, Davis, filed a motion to suppress, at Dkt. 75, and four
other related motions,3 all of which have since been resolved by this Court. On January 24,
2020, at Dkt. 106, the Government filed a Response in Opposition to Davis’ Motion for
Franks Hearing. On February 25 and 26, 2020, this Court held status conferences regarding
1 In light of Davis’ Motion to Suppress [Dkt. 75] being denied by the District Court, this report
and recommendation is being issued as a final report and recommendation. Pursuant to Fed. R.
Crim. P. 59(b)(3), any objections will be considered by the District Court Judge, who will accept,
reject, or modify the recommendation, or resubmit the matter to the Magistrate Judge for additional
consideration and recommendations.
2 The Motion itself failed to provide details of the factual bases for the motion. The details of the
claim can be found in Dkts. 75 (filed concurrently and “incorporated by reference”), 97, and 104.
3 Dkt. 77 (Motion to Compel); Dkt. 79 (Motion for Hearing In Camera and Ex Parte); Dkt. 81
(Motion for Evidentiary Hearing regarding Defendant’s Pretrial Motions); Dkt. 82 (Motion for
Disclosure of Grand Jury Proceedings).
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Davis’ pending motions, including the Motion for Franks Hearing. [Dkts. 121 & 122]. On
March 5, 2020, at Dkt. 130, with this Court’s leave, Davis filed a consolidated reply to the
Government’s responses to Davis’ prior motions, among them Davis’ Motion for Franks
Hearing. On March 11, 2020, at Dkt. 131, the Government filed a consolidated response to
Davis’ consolidated reply. On March 20, 2020, with this Court’s leave, Davis filed a sur
reply to the Government’s response, at Dkt. 135, along with a declaration of counsel, at
Dkt 136.
For the reasons set forth below, this Court recommends the Defendant’s Motion for
a Franks hearing be DENIED.
II. 	BACKGROUND.
On March 25, 2021, at Dkt. 237, this Court issued a final report and recommendation
on Davis’ motion to suppress, recommending denial of suppression. On April 7, 2021, at
Dkt. 238, that final report and recommendation was adopted in its entirety by the District
Court Judge. Because that final report and recommendation comprehensively covered the
procedural posture of this case, the facts of this case, as well as issues related to probable
cause for the search warrant, for the sake of brevity, that background and discussion will
not be repeated here.
III. APPLICABLE LAW.
Under Franks, a defendant must satisfy a two-pronged test to be entitled to an
evidentiary hearing.4 First, a defendant “must make a ‘substantial preliminary showing’
4 United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982).
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that the affidavit contained actual falsity, and that the falsity was either deliberate or
resulted from reckless disregard for the truth.”5 The defendant’s allegations cannot be
“merely conclusory; rather, they must be accompanied by a detailed offer of proof.”6
Second, the court must determine that the challenged statement is “necessary to a
finding of probable cause, i.e., that its excision would leave the affidavit with insufficient
content to establish probable cause.”7 The effect of misrepresentations and omissions on
the existence of probable cause is cumulatively considered.8
III. 	ANALYSIS.
Davis contends that under Franks9, the warrant affiant— FBI Task Force Officer
Leonard Torres (hereinafter, “TFO Torres)—made “reckless or intentional misstatements
and omissions, such that, at a minimum, a Franks hearing should be held.”10 For the reasons
explained below, this Court disagrees. Even accepting as true Davis’ assertions regarding
allegedly false or misleading statements, or deliberate or reckless omissions of fact; the
evidence submitted to the issuing magistrate judge was sufficient to support a finding of
probable cause.
5 Id. at 1360 [quoting Franks, 438 U.S. at 155].
6 Id. at 1360 (citing Franks, 438 U.S. at 171). But see, United States v. Stanert, 762 F.2d 775, 781
(9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985):
Clear proof of deliberate or reckless omission is not required. See United States v.
Chesher, 678 F.2d 1353, 1362 (9th Cir.1982). Such proof is reserved for the
evidentiary hearing. Id. At this stage, all that is required is that the defendant make
a substantial showing that the affiant intentionally or recklessly omitted facts
required to prevent technically true statements in the affidavit from being
misleading.
7 Chesher, 678 F.2d at 1360 (citing Franks, 438 U.S. at 171–72).
8 Stanert, 762 F.2d at 782.
9 438 U.S. at 156
10 Id.
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A. Davis fails to meet the first prong of the Franks test.
In order to meet the first prong of the Franks test, Davis must make a substantial
preliminary showing that TFO Torres’ Affidavit not only contained actual false statements,
but that TFO Torres made such false statements intentionally or with reckless disregard for
the truth.11 Even assuming, arguendo, that certain pieces of information were negligently
left out, a negligent omission is not enough to meet the standard of actual falsity.12 Under
Franks, allegations of negligence or innocent mistake are insufficient.13 For the reasons
explained below, Davis has failed to meet the first prong of Franks.
While there may be minor errors, inaccuracies, and/or omissions in TFO Torres’
Affidavit, there is no indication that they were deliberate or material. Davis asserts, for
instance, that the Confidential Human Source [CHS] and Davis never discussed the
purchase of methamphetamine and heroin over the phone, contrary to paragraph 16 of the
Affidavit.14 The sole basis for that conclusion, however, is the absence of a recording of
such a call. Given that subsequent recorded conversations exist, which explicitly discuss
the purchase of illegal narcotics, the content of the unrecorded call was not material to the
probable cause determination.
Davis also alleges that “TFO Torres. . . falsely sw[ore] that ‘[t]he CHS purchased
56.8 grams of methamphetamine and .06 grams of heroin from the [Defendant] for
11 See Chesher, 678 F.2d at 1360.
12 United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002).
13 Franks, 438 at 171.
14 Dkt. 75 at 13.
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$1420’.”15 Though it appears, based upon the transcript of the controlled buy, that the CHS
likely purchased $1580 worth of methamphetamine and heroin, not the $1420 stated in the
Affidavit, there is no indication that TFO Torres deliberately misrepresented the amount,
or that the difference in the stated amount would have been material to the magistrate
judge’s finding of probable cause. The audio recording of the CHS’s discussion of the
amount of methamphetamine and heroin purchase is ambiguous, and it is understandable
how the amount may have been misconstrued by TFO Torres.
Davis, additionally, argues that TFO Torres’ failure to include in the Affidavit that
the CHS was not searched before the controlled buy16 constituted an intentional or reckless
material omission. Davis has failed to explain away: (1) the fact that the CHS was in the
presence of law enforcement the entire day leading up to the controlled buy; and (2) Davis’
conversation between the CHS and himself at the point-in-time of the controlled buy,
where there is a contemporaneous recorded conversation that gives the distinct impression
that a drug transaction was happening.17 It is unclear to this Court how omitting the failure
to search CHS prior to the controlled buy would have “manipulate[d] the inferences [the]
magistrate [judge]. . . [would have] draw[n]” in his probable cause analysis, or how
including that fact was “required to prevent technically true statements in the affidavit from
being misleading. 18
15 Dkt. 75 at 14 (quoting the Affidavit at ¶20).
16 Dkt. 75 at 16.
17 Dkt. 114.
18 Stanert, 762 F.2d at 781.
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Regarding Davis’ point that the Affidavit should have included the fact that the CHS
received compensation for her services as a CHS, this Court agrees.19 However, as the
Government correctly notes, Davis has failed to meet his burden to explain how this
omission rose to the level of a reckless omission.20 Even assuming that the omission could
be considered reckless—because it related to possible motives for the CHS’s cooperation
with TFO Torres and her testimony, there is no indication that it was material—given other
facts and circumstance that supported the reliability of the CHS’s information.21
Regarding Davis’ assertion that the Affidavit inadequately described the CHS’s
criminal history, the Court sees no evidence that this was the case.22 Additionally, Davis’
assertion that the Affidavit inadequately describes the criminal histories of two other
witnesses to Davis’ drug trafficking, the Court finds the criminal histories to have been
sufficient.23 The relevant criminal history, especially that related to crimes of dishonesty,
were complete in that area. Given the very limited use of the two other witnesses, no further
history was required. Finally, Davis asserts that the Affidavit inadequately described his
own criminal history due to its lack of reference to the specific charges or dates, this Court
19 Dkt. 95-1 at 11-12. On October 3, 2018, the CHS received a payment of $500 for her assistance
to law enforcement between October 1 and 5, 2018. Dkt. 97-4 at 1. On October 11, 2018, the CHS
received a payment of $600 for her assistance to law enforcement between October 4, 2018 and
November 4, 2018. Id. at 2.
20 Dkt. 106 at 10.
21 See Dkt. 135 at 15-17, and 28-30, regarding this Court’s assessment of the CHS’s credibility.
22 Dkt. 75 at 26.
23 Dkt. 75 at 28.
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disagrees.24 The Affidavit described Davis’ criminal background with sufficient detail to
place the rest of the Affidavit in context.
For the reasons stated above, Davis has failed to meet his burden under the first
prong of the Franks test.
B. Davis fails to meet the second prong of the Franks test.
Under the second prong, in cases of affirmative misrepresentations, “when material
that is the subject of the alleged falsity or reckless disregard is set to one side,” the court
must determine if “there remains sufficient content in the warrant affidavit to support a
finding of probable cause.”25 In turn, when deliberate or reckless omissions are at issue, a
reviewing court must consider “whether the affidavit, once corrected and supplemented,
would provide a magistrate with a substantial basis for concluding that probable cause
existed.”26 Here, assuming that Davis supplied a “substantial preliminary showing” of
deliberate or reckless falsity or omission under the first prong of the Franks test, the
Affidavit is still supported by enough information for the magistrate judge to have made a
24 Dkt. 75 at 27. See Dkt. 75-2:
Antoine Davis criminal history includes the following from California: eight drug-
related convictions to include possession, manufacturing, and distribution of
controlled substances, as well as being a felon in possession of a firearm. Davis
also has a non-extraditable arrest warrant for being a felon in possession of a
firearm from Nevada. The warrant was issued on August 2, 2017.
25 Franks, 438 U.S. at 171–72.
26 Stanert, 762 F.2d at 782
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probable cause determination, excluding the challenged facts and including the omitted
facts. Accordingly, Davis’ arguments fail under the second prong of Franks.27
As explained at greater length in this Court’s final report and recommendation at
Dkt. 237, based upon this Court’s review of the record: 1) the CHS was a credible source,
and the information provided in the Affidavit regarding her basis of knowledge was
sufficient for the magistrate judge to evaluate her credibility. The information provided in
the Affidavit regarding the controlled buy, viewed in concert with the information provided
by the CHS, and other facts and circumstances described in the Affidavit, supported the
magistrate judge’s determination of probable cause. 28
In finding that the CHS provided credible information, this court need not, and does
not, find that there is no evidence which impugns her credibility. Key pieces of information
provided by the CHS that support her credibility included: 1) the exact location of Davis’s
apartment; 2) that Davis kept significant quantities of drugs in that apartment, including
heroin and methamphetamine; 3) that Davis sold drugs out of that apartment; 4) that Davis
was a pimp; 5) that Davis tried to recruit the CHS to work for him as a prostitute; 6) that
Davis tried to set the CHS up in an apartment to engage in prostitution; 7) that Davis
traveled between California and Alaska; and 8) that Davis had spent significant time in
prison.29 Most importantly, she participated in an attempted controlled buy of narcotics
27 Chesher, 678 F.2d at 1355.
28 See Dkt. 135 at 15-17, and 28-30, regarding this Court’s assessment of the CHS’s credibility;
see Id. at 17-19, and 25-28, regarding this court’s discussion of the controlled buy.
29 As explained at Dkt. 135, the CHS’s credibility was extensively reviewed by this Court; see also
Dkt. 75-2 at 11.
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from Davis in the apartment that she previously identified as belonging to Davis.30 That
the CHS received compensation from law enforcement and that she was not searched prior
to the controlled buy are, as Davis argues, facts which reduce her credibility. However,
balancing the evidence in support of her credibility with the information against, this court
finds her to be credible.
Because Davis has failed to make any assertion in his Motion that, if accepted as
true and known to the magistrate judge, would have undermined the CHS’s credibility as
a source, or brought the fact that the CHS purchased some quantify of narcotics from Davis
during the controlled buy into question, Davis has failed to meet the burden of proof under
Franks
IV. CONCLUSION.
Therefore, this Court recommends that Davis’s Motion at Dkt. 80 be DENIED.
DATED this 26th day of April 2021, at Anchorage, Alaska.
s/ Matthew M. Scoble
U.S. MAGISTRATE JUDGE
Pursuant to Fed. R. Crim. P. 59(b)(2) and D. Alaska Loc. Mag. R. 6(a), a party
seeking to object to this final finding and recommendation shall file written objections with
the Clerk of Court no later than the CLOSE OF BUSINESS on May 4, 2021. Pursuant to
Fed. R. Crim. P. 59(b)(3), objections will be considered first by the District Court Judge,
who will then accept, reject, or modify the recommendation, or resubmit the matter to the
Magistrate Judge for additional consideration. Failure to object to a magistrate judge’s
findings of fact may be treated as a procedural default and waiver of the right to contest
those findings on appeal. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). The
Ninth Circuit concludes that a district court is not required to consider evidence introduced
for the first time in a party’s objection to a magistrate judge’s recommendation. United
30 Id. at 13.
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States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed
five (5) pages in length, and shall not merely reargue positions presented in motion papers.
Rather, 	objections 	and 	responses 	shall 	specifically 	designate 	the 	findings 	or
recommendations objected to, the basis of the objection, and the points and authorities in
support. Response(s) to the objections shall be filed on or before the CLOSE OF
BUSINESS on May 7, 2021. The parties shall otherwise comply with provisions of D.
Alaska Loc. Mag. R. 6(a). The shortened objection and response deadlines are
necessary due to the looming trial date. D. Alaska Loc. Mag. R. 6(a) authorizes the
Court to alter the standard objection deadlines.
Reports and recommendations are not appealable orders. Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s
judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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