F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-4268
(D. Utah)
ARA SH ALEX ANDER ZA RIF, (D.C. No. 2:05-CR-00117-PGC)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BRISCO E and HA RTZ, Circuit Judges, and KR IEGER , District Judge **
In this appeal, Arash Alexander Zarif challenges the trial court’s denial of
his request for a Franks hearing and its finding that sufficient probable cause
existed to support a search warrant executed at Zarif’s residence. He contends
that he identified several false statements in the warrant affidavit that constituted
either deliberate falsehoods or which were made with a reckless disregard for the
truth, and that, when stripped of the false statements, the warrant affidavit fails to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable M arcia S. Krieger, United States District Judge for the
District of Colorado, sitting by designation.
establish sufficient probable cause to permit a search of his residence. W e
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. Facts
On or about February 17, 2005, Draper City Police Detective K. Cole
signed an affidavit for a search warrant, asserting that he believed that, on or
about February 6, 2005, Zarif had transported two minor females to his house for
the purpose of engaging in prostitution. Cole’s affidavit stated that it was based
primarily on interviews conducted with the two minors, who were identified as
V1 and V2. The following facts are taken from the affidavit. Except as
specifically noted herein, Zarif does not dispute the veracity of the statements in
the affidavit.
The affidavit stated that both minors had positively identified Zarif from
his driver’s license photo placed in a photo lineup. Zarif contends that this
statement is false, insofar as V2's recorded interview with Cole reveals that she
stated that the photo of Zarif “looks kind of like Alex, but I don’t think it’s him.”
The affidavit went on to state that on January 22, 2005, V2, having
previously been introduced to Zarif by a friend, went to Zarif’s home and had
sexual intercourse with him. On February 6, 2005, V2 called V1, and both girls
were picked up by Zarif in his car. The affidavit states that V1 identified certain
details of Zarif’s car. As they were driving, V1 asked Zarif how he made enough
money to be able to afford the car. Both V1 and V2 told Cole that Zarif
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responded by saying that he “sold shoes.” However, in V2's recorded interview
with Cole, she had stated that Zarif had said he was a “middleman” for a shoe
company.
The affidavit further states, according to V1, Zarif then stated that he
owned a “brothel,” or, according to V2, that he ran an “escort service.” The
minors asked how much money the “girls” made working for him, and were told
that they earned between $300 and $500 for sexual intercourse, and $50 for
performing oral sex. Zarif inquired as to whether the minors w ere interested in
making some money that night. V2 immediately agreed, but V1 hesitated. Zarif
then began calling unknown persons on his cell phone to arrange a liaison at his
house. The affidavit states that V2 “believes the phone numbers for the people
[Zarif] called were recorded in his cell phone because he looked their number up
in the phone.” Zarif contends that V2's recorded interview does not indicate that
V2 ever voiced such a belief or asserts that she saw Zarif look the numbers up in
his phone.
Zarif pulled the car into a garage located on the bottom level of a residence.
The affidavit recites V1's identification of the layout of the residence, including
the furnishings of the main level, and the location of a bathroom and bedroom on
higher floors. Zarif contends here that “Both minors did not describe the
residence in great detail.” O nce inside, Zarif again asked if the minors w anted to
make some money by performing oral sex, and both minors agreed. Zarif sent the
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minors to the bathroom to “get ready.” Three males then arrived, described by
both minors as being a “Native American-Indian,” a “M exican,” and a “white
guy.” Zarif brought the “Indian” and the “M exican” to the bathroom, and told the
minors to begin. V1 insisted that the men use a condom, and the men put on
condoms. V2 stated that neither man used condoms at any time. V1 began
performing oral sex on the “Indian,” and V2 performed oral sex on the
“M exican.” After five minutes, they switched partners. V1 states that she waited
until the “M exican” procured another condom before she would perform oral sex
on him. Both minors state that V2 finished first, and left the bathroom, and that
V1 finished about five minutes later. Zarif alleges that the affidavit fails to
disclose the fact that V1 gave Cole inconsistent stories regarding the acts she
performed, namely, that although she told Cole in the interview that she
performed oral sex, in a prior written statement, she had stated that she gave a
“hand job.”
The affidavit states that according to V1, after she finished and went
downstairs, V2 went back to the bathroom with the “white guy” and, V1 believes
that V2 performed oral sex on him. The affidavit notes that V2 “stated the exact
opposite” – that V1 went upstairs with the “white guy” and performed oral sex on
him. The affidavit also states that “V1 admitted to giving her mother $100.00 the
next day. V1's mother confirmed that V1 gave her $100.00.” Zarif contends that
this last statement is misleading, implying that the $100 corroborated the claim
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that V 1 received the money for performing the acts described. However, V1
stated in her interview that the money she gave her mother came from performing
construction work, a fact not disclosed in the affidavit.
The affidavit then states that, according to V2, after they had all finished,
they went to the kitchen area and began drinking vodka out of a bottle. The three
males left, and Zarif then stated that he wanted to “hot tub.” Both minors went
upstairs to the bedroom where a tub was apparently located, got undressed, 1 and
got into the tub. The minors began “making out,” when Zarif came in and began
recording them with what Cole believed was a digital movie camera. Zarif
contends that the allegation that the minors were “making out” in the tub
w rongfully implies that they w ere engaged in a “lewd and lascivious” act. He
states that both minors stated to Cole that they viewed the footage that Zarif had
recorded and stated that they looked “silly,” that it did not “look real,” and that
they were “giggling.” Zarif contends that omission of the minors’
characterizations of what they saw on the recorded footage renders this portion of
the affidavit misleading.
V2 states that, after they were done in the tub, both got out, dried off, and
got dressed. They asked Zarif if they could watch the footage he had recorded.
1
The affidavit notes a discrepancy in the minors’ statements on this point.
It states that V1 claims that she kept her sports bra on and took off her pants and
put on a pair of green or blue shorts belonging to Zarif, and that V 2 was naked.
V2 stated that both she and V1 were naked in the tub.
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V1 stated that, when the recording began to play, she saw “young girls, maybe
only 14 years old, performing sex acts.” V2 stated that the girl she saw on the
recording was “one of [Zarif’s] old girlfriends.” Zarif contends that this
juxtaposition of the two minors’ statements in the affidavit implies that the girl
identified by V2 is the same person seen by V1 “performing sex acts.” In
actuality, Zarif contends, V2 stated that the person she saw on the tape was fully
clothed, sitting and talking with Zarif, and that the affidavit is misleading in
implying that the two minors are describing the same scene.
The affidavit then repeats that both minors were shown a six-photo array,
and that both picked out Zarif’s photo. As stated previously, Zarif contends that
this statement is false with regard to V2, who stated that the photo “looked like
Alex” but that she did not think it was him.
The affidavit then recites certain information conveyed to Cole by Draper
City Police Officers. On February 9, 2005, those officers were asked to assist
with locating a runaw ay juvenile – V2 – who was believed to have been at Zarif’s
residence. The officers arrived and spoke with Zarif, who stated that he knew V2,
but stated that he had not seen her in “several days,” which he later refined to
“several weeks.” Zarif permitted the officers to search the residence for V2, but
she was not found. On February 11, 2005, Cole spoke with the officers who had
conducted the search, and the officers described the layout and contents of the
residence in a manner that matched the description of the premises given by V1,
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and also reported seeing dark blue or green shorts that matched a description
given by V1. Zarif contends that this portion of the affidavit misleadingly omits
to mention that Officer Carpenter 2 of the Draper City Police Department searched
Zarif’s residence on February 10, 2005, specifically looking for a video camera,
but did not find one.
Zarif also contends that Cole’s failure to state in the affidavit that the
minors did not report the events to police until after their parents had learned of
the events was both material and intentional or reckless.
Based on the foregoing, Cole sought a search warrant permitting the search
of Zarif’s residence and the specific authorization to search for and seize Zarif’s
cell phone; any used condoms; a bottle of vodka; hair, fibers, and fingerprints in
the home and Zafir’s car; and the camera, among other things. On February 17,
2005, the M agistrate Judge issued the w arrant requested by Cole. The record
does not reveal when the warrant was executed, or what evidence was seized
pursuant to it.
Zarif was subsequently indicted, and on April 7, 2005, a Second
Superseding Indictment was returned, charging Zarif with three counts of enticing
a minor to engage in sexually explicit conduct for the purpose of producing visual
2
Officer Carpenter is not one of the two Draper City Police Officers
mentioned in the affidavit as having searched Zarif’s residence on February 9,
2005. Thus, it appears that a second search of the residence occurred on February
10, 2005. No mention of this second search or its circumstances is made in the
affidavit.
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depictions of such conduct; one count of possession of child pornography; two
counts of enticing a minor to engage in prostitution; one count of possession of a
firearm by a prohibited person; and one count of possession of methamphetamine.
II. M otion to suppress / for Franks hearing
Zarif moved to suppress 3 the evidence seized pursuant to the warrant on the
grounds that the warrant was obtained by means of an affidavit containing
material misrepresentations. On April 12, 2005, the trial court denied the motion
in a written order, without having conducted a Franks hearing. The court found
that although certain representations contained in the warrant affidavit were either
know ingly or recklessly misleading, 4 the affidavit, stripped of those
3
The motion is not included in the record, and is not immediately apparent
from a review of the trial court’s docket. The docket does reflect two motions
filed on M arch 25, 2005, one to “suppress guns and drugs not listed in the search
warrant” (# 37) and one “for Evidentiary Hearing re: Sixth Amendment violation”
(# 38). Our description of the motion is taken from the trial court’s order denying
it.
4
Specifically, the trial court found that the assertion that V2 positively
identified Zarif’s photo was false and the court assumed, without necessarily
finding, that the falsehood was reckless; that the description of both minors
stating that Zarif claimed to sell shoes was neither false nor intentionally or
recklessly misleading; that the description of V2 as stating that Zarif looked up
numbers in his cell phone was not materially false, and that any untruthfulness by
Cole in representing V2's statement on this point would have been negligent, but
not intentional or reckless; that the implication that the $100 V1 gave to her
mother came from Zarif for performing oral sex was misleading, and was made
with reckless disregard; that the representations as to the minors “making out” in
the tub was not false; that the implication that the girl seen by V1 in the recording
performing sexual acts was the same girl identified by V2 as one of Zarif’s
girlfriends was misleading, and was intentional or made with reckless disregard;
that the omission of Officer Carpenter’s failure to find the camera was not
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representations, still demonstrated sufficient probable cause for the issuance of
the warrant. Specifically, the trial court disregarded the assertion that V2 had
positively identified Zarif in the photo lineup, disregarded the assertion that V1
had given her mother $100 the follow ing day, and considered that the minors’
characterizations of what they saw on the recording when it was played back to be
contradictory. Nevertheless, “even with these falsehoods and omissions
redacted,” the trial court found that the affidavit had “abundant information for a
finding of probable cause.” In particular, the trial court noted the undisputed fact
that V1 had positively identified Zarif in a photo lineup; the undisputed facts
regarding Zarif telling the minors that he operated something akin to an escort
service and that he asked them if they wanted to earn money that night by
performing oral sex; the fact that V1 described the interior of Zarif’s home in a
manner that was corroborated by the Draper City Police Officers; the undisputed
fact that Zarif introduced the minors to three men, told them to “act
professionally,” and that the minors performed oral sex on the men; and the
undisputed fact that the Zarif filmed the two minors – at least one of whom was
naked – “making out” in a hot tub.
misleading; that the omission of V1's prior statement that she performed a “hand
job,” not oral sex, was not misleading; and that the omission of the fact that the
minors did not report the events until after their parents had learned of them w as
not misleading.
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The charges against Zarif were tried in a bench trial on M ay 2, 2005. Zarif
was convicted on three counts of enticing a minor to engage in sexually explicit
conduct for the purpose of producing visual depictions of such conduct, 18 U.S.C.
§ 2251. He was sentenced to fifteen years’ incarceration. This appeal followed.
III. Discussion
On appeal, Zarif contends that the alleged misrepresentations and omissions
discussed above were intentional or reckless. Although not expressly stated or
argued, it appears that Zarif appeals those findings by the trial court that certain
alleged misrepresentations or omissions w ere either not false or materially
misleading, or were not intentional or reckless. Zarif further argues that, when
stripped of the offending information, the affidavit does not demonstrate probable
cause because it does not supply information demonstrating the veracity of the
informants.
In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the Supreme Court
held that in limited circumstances, a defendant is entitled to an evidentiary
hearing to determine whether a warrant was issued in reliance on a deliberately or
recklessly false affidavit. To be entitled to a Franks hearing, a defendant must
make a substantial showing that the warrant affiant made a false statement or
omitted material information from the affidavit, and that the misrepresentation or
omission was made knowingly or w ith reckless disregard for the truth. Franks,
438 U.S. at 155-56; United States v. Artez, 389 F.3d 1106, 1116 (10 th Cir. 2004).
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In addition, the defendant must show that the misrepresentation or omission was
necessary to the finding of probable cause. Franks, 438 U.S. at 156. In other
words, if, after the allegedly false material is set aside or the omitted material
excluded, there remains sufficient content in the affidavit to support a finding of
probable cause, no hearing is required. Franks, 438 U.S. at 171-72. W hether an
affidavit demonstrates sufficient probable cause to support a warrant is a question
of law that w e review de novo. U.S. v. Gonzales, 399 F.3d 1225, 1228 (10 th Cir.
2005).
Zarif’s first argument on appeal appears to be that the trial court erred in
finding that certain alleged misrepresentations or omissions were either not
misleading or were not made with intent or reckless disregard. W e need not reach
the question of w hether the trial court’s findings as to the truth or falsity of these
allegations are correct because we find that, even if all of the assertions
challenged by Zarif were stricken from the affidavit (and all of the allegedly
improperly omitted material included), there would still be probable cause for the
issuance of a warrant. Zarif does not dispute, for example, allegations in the
warrant that he encouraged and facilitated the minors’ performing oral sex for
money, or allegations that he videotaped the minors – at least one of whom was
naked – engaging in simulated intimacies. These unchallenged allegations supply
sufficient probable cause for the warrant that was issued even in the absence of
the challenged allegations. Thus, we find that the trial court was correct in
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concluding that Zarif failed to make the preliminary showing necessary to entitle
him to a Franks hearing.
Zarif’s second argument is that, once the three statements found by the trial
court to be intentionally or recklessly misleading are omitted, the affidavit fails to
demonstrate sufficient probable cause for issuance of a warrant because the
affidavit fails to articulate facts demonstrating the veracity of V1 and V2.
W hether a warrant application founded upon an informant’s allegations of
criminal conduct demonstrates sufficient probable cause is a “practical, common-
sense decision,” to be made by a magistrate judge in consideration of the totality
of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). Among the
factors that must inform this decision are facts in the warrant demonstrating the
informant’s reliability, veracity, and basis of knowledge. Id. The Supreme Court
in Gates refused to lay down a rigid rule for how much detail a warrant
application must provide about the informant, observing that a deficiency in one
factor may be balanced out by the excess in another. Id. at 233-34. Indeed, even
anonymous tips, when supplemented by independent police investigation, may be
sufficient despite the absence of any indication of the anonymous informant’s
veracity, reliability, or basis of knowledge. Id. at 237-38.
There is no indication in the record that Zarif raised this specific issue
below. Even assuming he had, however, we find that the affidavit contains
sufficient allegations from which the magistrate judge could have concluded that
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V1 and V2 were sufficiently reliable w itnesses. First, although they occasionally
differed in some respects, the two minors’ statements corroborated each other,
both in general and in many areas of specific detail. 5 Second, V1 and V2 gave
detailed descriptions of the alleged wrongdoing, in which they admitted
personally participating. See Gates, 462 U.S. at 234 (“even if we entertain some
doubt as to an informant's motives, his explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed first-hand,
entitles his tip to greater w eight than might otherw ise be the case”). Third, a
handful of the facts asserted by V1 and V2 are shown by the affidavit to have
been independently corroborated, namely, V1's description of the layout and
contents of Zarif’s residence and the appearance of his car; Zarif’s
acknowledgement to the Draper City Police Officers that he knew V2 and had
seen her “several days” earlier; and the officers’ observation of dark blue or green
shorts, matching those described by V1, in Zarif’s house. Looking at the totality
of the contents of the affidavit, and mindful of the great deference that a
review ing court should pay to the magistrate judge’s determination of probable
cause, Gates, 462 U.S. at 236, we cannot say that the affidavit was so devoid of
5
The fact that the minors’ statements sometimes differed on material
points does not defeat the corroborative value of their statements. Such
inconsistencies are simply one of the circumstances that the magistrate judge
would consider in evaluating the sufficiency of the showing of probable cause.
Likewise, the possibility that the statements corroborated each other because the
minors may have jointly fabricated their stories was another circumstance for the
magistrate judge to consider.
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facts demonstrating the reliability and veracity of V1 and V2 that the magistrate
judge’s finding of probable cause lacked any substantial basis.
IV. Conclusion
The trial court’s denial of the motion to suppress is AFFIRM ED.
Entered for the Court
M arcia S. Krieger
District Judge
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