United States v. Graf

United States Court of Appeals
For the First Circuit

No. 14-1156

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD GRAF,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Thompson and Barron, Circuit Judges.

Jonathan G. Mermin, with whom Preti, Flaherty, Beliveau &
Pachios, LLP was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, District of
Maine, was on brief, for appellee.

April 21, 2015
 THOMPSON, Circuit Judge. Working on a tip from a

confidential informant, police searched defendant-appellant Richard

Graf's home, turning up marijuana and an illegal gun. Graf was

subsequently indicted on drug and firearm charges.

He moved in a pre-trial motion to suppress the seized

evidence, arguing to a Maine federal magistrate judge that to

sweet-talk a state court justice of the peace into signing off on

the search warrant application, a police detective sugarcoated the

facts in his sworn statement accompanying it. As part of his

motion to suppress, Graf also requested an evidentiary hearing to

challenge the affiant-detective's credibility.

Neither the magistrate judge nor the district court was

convinced and denied the motion. Graf now appeals the denial,

arguing that he was entitled to a full hearing to challenge the

detective's veracity, and the magistrate judge improperly allowed

the government to investigate itself before deciding his motion to

suppress.

Despite a valiant effort, we affirm the lower court.

BACKGROUND

The Controversial Warrant Affidavit

In April 2011, Carl Gottardi, a detective lieutenant for

the Somerset County Sheriff's Department in Maine, applied for a

warrant to search Graf's home. The warrant application was

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supported by Gottardi's sworn statement, to which we'll refer from

now on as "the Graf affidavit."

In the Graf affidavit, Gottardi attested he had probable

cause to believe Graf was hiding marijuana and other drug

accoutrements in his home, based on information Gottardi received

from a confidential informant called "11-25." 11-25 "ha[d] been a

very reliable informant . . . for the past several years," and had

helped "obtain[] numerous drug search warrants, . . . with numerous

persons being charged and convicted of various . . . drug

offenses," Gottardi swore. 11-25 had "also provided other law

enforcement officials with reliable drug related information in the

past."

Specific to this case, Gottardi also wrote in the

affidavit that 11-25 relayed his personal knowledge that "for

several years [] Graf has continually sold large amounts of

marijuana," describing the location of the "camp type residence"

where Graf sold his "high grade, commercial type" stuff.1 Relying

on Gottardi's affidavit, a state Justice of the Peace signed off on

the warrant,2 and during the search of Graf's home, police found

1
To maintain the informant's confidentiality, the affidavit
did not state one way or another whether 11-25's preferred gender
pronoun was "he" or "she." For readability purposes only, we will
refer to 11-25 as "he."
2
In Maine, justices of the peace, who are not necessarily
judges but could be attorneys or other court officials, are
permitted to issue search warrants.

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marijuana plants and an unregistered short-barreled shotgun. Not

surprisingly, Graf was indicted on federal firearms possession and

drug charges.

Graf's Franks Motions

In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the

Supreme Court held that a defendant is entitled to an evidentiary

hearing to "challenge the veracity of a sworn statement used by

police to procure a search warrant," if "the defendant makes a

substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the

allegedly false statement is necessary to the finding of probable

cause." In August 2011, Graf asked the federal trial court for one

of these so-called Franks hearings, arguing that he should be able

to test the veracity of the statements Gottardi made in his warrant

affidavit. Graf maintained via a sworn-to affidavit that at best,

Gottardi embellished 11-25's reliability, but more likely, either

Gottardi or the informant was simply lying. In addition to a

hearing, Graf also asked that the evidence seized from his home be

suppressed. Other than his affidavit, Graf supported his motion

with nothing further.

A magistrate judge denied the motion because, as she put

it, Graf did "not allege, [or] . . . attempt to make a substantial

preliminary showing, that [] Gottardi knowingly and intentionally

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made false statements in the search warrant affidavit or included

statements in reckless disregard of the truth." Rather, the

magistrate judge decided, Graf "relie[d] entirely on the theory

that the confidential informant gave Gottardi inaccurate

information," which was not enough for a Franks hearing.

Graf's team was undeterred, and his new lawyer decided to

get to the bottom of things himself by digging up all the warrant

applications filed by the Somerset County Sheriff's Department from

April 2009 through April 2012 and searching for all references to

"11-25." Turns out, there were none, that is, no warrant

applications filed prior to April 2011 (which was when Gottardi got

the warrant to search Graf's home) naming "11-25" as an informant.

"11-25" did appear, however, in two of the warrant applications

filed after Graf's, but in each of the three affidavits where "11-

25" was mentioned, the informant's background and history as a

tipster were described a little differently.

Armed with this new information, Graf marched back into

court and filed a second motion to suppress and request for a

Franks hearing. This second go-round, Graf argued that he now had

proof Gottardi "displayed a reckless disregard for the truth by

exaggerating CI 11-25's reliability and use in the past."3

3
Curiously enough, Graf also argued to the trial court that
the informant lied about ever being on Graf's property, evident
because one, the directions the informant gave to Graf's house were
incorrect and, two, were the informant ever actually there, he
would have seen the sixty-eight marijuana plants "growing in plain

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 The government fired off an explanation, though, and in

support of its opposition to the motion, submitted a supplemental

affidavit from Gottardi describing his "practice to periodically

change the identifying numbers assigned to confidential

informants." Gottardi also claimed that "the person designated CI

11-25 in the Graf search warrant has been assigned four identifying

numbers during the course of" his work with Gottardi. In addition,

"[o]ccasionally, identifying numbers will be re-used for different

persons," Gottardi swore.4

Graf shot back, arguing that even if Gottardi was telling

the truth about these so-called practices of his, "[b]y assigning

the same CI numbers to three different individuals on three

different drug cases over a five month period, Gottardi is

misleading those officials who are tasked with reviewing affidavits

in support of search warrants." Gottardi's unconventional

practice, Graf urged, "is meant to enhance the credibility of the

[informant] whose number repeatedly appeared before the same

[reviewing official], even though, according to Gottardi, they are

different people."

sight" on Graf's property. Graf, however, did not pursue on appeal
the informant's unreliability as an additional basis for
discrediting Gottardi's affidavit.
4
Gottardi's affidavit suggests that these practices are his
personal ones, and not necessarily the ones sanctioned by the
sheriff's office or other law enforcement. Indeed, the government
conceded at oral argument that reusing the same number for
different informants is "highly irregular."

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 Magistrate's Preliminary Order

In response, the magistrate judge issued a preliminary

order noting that she was "not persuaded that Defendant ha[d] made

a substantial preliminary showing that Lt. Gottardi supplied . . .

false representations concerning the background of 11-25 as

described in his [April] 2011 warrant application." The judge

explained: "[t]he mere fact that there is no earlier warrant

application involving an informant identified as 11-25 readily can

be explained by a practice of changing an informant’s numerical

identifier over time."

Still, Graf had "raised a serious concern" by "expos[ing]

an irregular practice of identifying confidential informants that

raises some cause for concern about Lt. Gottardi’s underlying

affidavit." The court noted that "assigning the same numerical

identifier to three different confidential informants within a

relatively brief timespan" was a "surprising revelation about what

seems . . . a highly irregular, ill-advised, and potentially

misleading procedure." Thus, the magistrate judge observed,

Gottardi's second affidavit "raises as many questions as it

resolves."

Given her lingering concerns, the judge ordered the

government to "investigate this matter to assure itself" that 11-25

not only existed, but also was whom Gottardi claimed.

Specifically, the government was to file an in camera report

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addressing whether: the "11-25 described in the April 2011 warrant

application is an ascertainable individual with the history and

'pedigree' Lt. Gottardi has attributed to him"; "there were prior

matters in which this same 11-25 (under whatever other identifier)

supplied information supporting drug search warrants"; and "there

were in fact three separate informants identified as 11-25 between

April and October of 2011." The judge also ordered that the

"investigating individual [] be someone other than the prosecuting

attorney assigned to this specific case and [] not be employed by

the Somerset County Sheriff's Department or the Bureau of Alcohol,

Tobacco or Firearms ["ATF"]."5 The investigation would "enable

[the court] to determine whether [] a showing might be plausible if

a Franks hearing were convened."

Amendments to the Preliminary Order

Shortly after the magistrate judge entered the

preliminary order, the government filed a motion requesting that an

ATF agent be permitted to conduct the investigation. The judge

held a telephone conference to hear the parties. She expressed her

confusion about the government's motion; she had assumed the

investigation would be akin to a paralegal from the U.S. Attorney's

office simply "reviewing paperwork as opposed to a lot of field

work and interviews and so on." The government responded that it

5
ATF was the agency that presented Graf's case to the U.S.
Attorney's Office to prosecute.

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assumed the court wanted "an agent actually going out and

attempting to interview 11-25 and interviewing Mr. Gottardi and --

to gather those facts that the Court asked that we investigate."

Despite the court's clarification of its expectations, the

government pressed that it was "reluctant" to have someone from its

office investigate because that person could later be called as a

witness to answer "some additional questions that might not be

apparent from the report."

Graf objected, arguing that the court should assign a

"neutral third party" to conduct the investigation, as opposed to

someone from an agency that helped procure his prosecution. But

over Graf's objection, the court allowed the government's request

in part and ordered that an ATF agent could "conduct the

investigation subject to the limitation that the ATF agent in

charge of this case not be the one who conducts" it.

The ATF Report

On January 4, 2013, the government submitted its report

to the court in camera. In the report, ATF Special Agent

Christopher Durkin stated that in addition to interviewing

Gottardi, other police officers, and the informant designated as

11-25 in the Graf affidavit, he also reviewed warrant applications

from other cases to confirm Gottardi's statements in the affidavit.

Satisfied after reviewing the report, the magistrate

judge concluded that Graf did not make "a substantial preliminary

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showing that [] Gottardi . . . or any other law enforcement

officer, made untruthful or deliberately misleading statements in

the affidavit," and recommended that the trial judge deny Graf's

request for a Franks hearing. The district court judge adopted the

magistrate judge's recommendation, over Graf's objection, also

denying Graf's motion to suppress.

Graf ended up pleading guilty to possessing an

unregistered shotgun and manufacturing marijuana, reserving his

right to appeal the denial of his motion to suppress. The district

court sentenced him to two years in prison, among other conditions.

This timely appeal followed.

STANDARDS OF REVIEW

"We review the denial of a Franks hearing for clear

error." United States v. Reiner, 500 F.3d 10, 14 (1st Cir. 2007)

(citation omitted). Clear error "exists only when we are left with

the definite and firm conviction that a mistake has been

committed." United States v. Hicks, 575 F.3d 130, 138 (1st Cir.

2009) (citation and quotations omitted).

"We apply a mixed standard of review to the district

court's denial of a motion to suppress, reviewing findings of fact

for clear error and conclusions of law, including whether a

particular set of facts constitutes probable cause, de novo."

United States v. Belton, 520 F.3d 80, 82 (1st Cir. 2008) (citation

omitted). "To prevail, [a defendant] must show that no reasonable

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view of the evidence supports the denial of the motion to

suppress." Id. (citation omitted).

DISCUSSION

Graf's main argument on appeal is that the trial court

erred by denying him the opportunity to challenge Gottardi's

affidavit at a formal Franks evidentiary hearing, where he would

have had been able to cross-examine Gottardi. More specifically,

Graf relies on out-of-circuit precedent to argue that "the court

should not give the government an opportunity to present its

evidence on the validity of the warrant" without holding a "full

evidentiary Franks hearing."6 Graf also offers the secondary

argument that even if the lower court did not procedurally err in

hearing out the government before making its Franks ruling, the

particular procedure chosen by the magistrate judge -- to allow

ATF, a government entity, to investigate the truthfulness of Graf's

6
We note that Graf does not appear to have raised this
argument to the district court. To the contrary, in his response
to the government's opposition to his motion to suppress, Graf
actually uses Gottardi's supplemental affidavit to boost his own
case -– Gottardi's "false information about using [the informant]
previously and overstat[ing] the charges he was facing," and "that
Gottardi constantly changes CI's in a way which makes little
sense," "[w]hen combined together," "presents this Court with the
requisite 'substantial preliminary showing' that Gottardi's
affidavit contains false statements." Generally, we deem arguments
not raised before the district court waived. Millay v. Me. Dep't
of Labor, Bureau of Rehab., Div. for Blind & Visually Impaired, 762
F.3d 152, 157 n.4 (1st Cir. 2014). But given that the government
did not raise the waiver issue, we will address Graf's argument.

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affidavit statements -- was sufficient error such that we should

vacate the denial of his motion to suppress and remand it.

We discuss each of these arguments in turn.

Substantial Preliminary Showing Under Franks

Addressing Graf's primary argument requires us to unpack

it. In so doing, we are left with two distinct issues. The first

is a generally applicable legal proposition -- as a procedural

matter, whose evidence is a trial judge allowed to consider in

making the threshold determination that a defendant has not made a

substantial preliminary Franks showing? In other words, is Graf

correct in arguing that a court is limited to reviewing only the

materials a defendant submits, or is the court also permitted to

consider additional evidence submitted by the government?7 The

second question is a case-specific one -- if Graf carries the day

on the first point and the magistrate judge was supposed to

consider only his offer of proof, was the evidence Graf submitted

enough to make a substantial preliminary showing that Gottardi lied

in the affidavit in question?8

7
In making this argument, Graf urges us to adopt the holding
of United States v. McMurtrey, 704 F.3d 502, 510 (7th Cir. 2013),
where the Seventh Circuit held that "in deciding the threshold
question whether to grant a Franks hearing, the court should have
limited its consideration of new information to the defense's
evidence tending to refute probable cause. The court should not
have considered at that preliminary step the government's
explanation of the contradictions and discrepancies."
8
As we mentioned above, Franks also requires that the false
statement be made knowingly or intentionally (or with reckless

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 Unlike the McMurtrey court, neither we nor the Supreme

Court has explicitly addressed whether it constitutes legal error

for a trial court to consider government evidence before deciding

whether a Franks hearing is warranted. We need not do so today.

For purposes of our analysis, we can assume, without deciding, that

Graf's take on the first question is the correct one because, as we

discuss below, he still fails on the second question.

In sum, we find that the evidence Graf submitted to the

magistrate judge did not show that Gottardi lied in the affidavit

in question, and therefore, Graf has not convinced us that the

lower court clearly erred in denying him a Franks hearing.

Legal Backdrop

To frame our analysis, we'll first look at what it means

to make a substantial preliminary showing in the Franks context.

A search warrant affidavit "must set forth particular

facts and circumstances underlying the existence of probable cause"

to search. Franks, 438 U.S. at 165. Sometimes, law enforcement

agents seeking search warrants rely on tips from confidential

informants to form the basis of probable cause. In those cases,

disregard for the truth) and be necessary to the finding of
probable cause. The only issue either party focuses on in this
case, though, is the falsity of Gottardi's statements. That is,
the government does not dispute that if Gottardi made false
statements, he did so knowingly or with reckless disregard.
Likewise, the government does not argue that the allegedly false
statements were not necessary to the finding of probable cause, and
Graf does not argue that the warrant application, on its face, was
insufficient for a probable cause finding.

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"the affidavit must recite some of the underlying circumstances

from which the informant concluded that relevant evidence might be

discovered, and some of the underlying circumstances from which the

officer concluded that the informant . . . was credible or his

information reliable." Id. (citations and quotations omitted);

United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) ("Where

the primary basis for a probable cause determination is information

provided by a confidential informant, the affidavit must provide

some information from which a magistrate can credit the informant's

credibility.").

Assuming such conditions are met, it has long been the

case that "[a]n affidavit submitted in support of a search warrant

application is presumed valid." United States v. Grant, 218 F.3d

72, 77 (1st Cir. 2000) (citations omitted); see Franks, 438 U.S. at

171. In Franks, however, the Supreme Court was tasked with

deciding whether this "presumption of validity" is absolute, or

whether "in certain circumstances, a challenge [by a defendant] to

a warrant's veracity must be permitted." Franks, 438 U.S. at 164,

167, 171.

The Court decided that a "factual showing sufficient to

comprise probable cause . . . [must] be a truthful showing," "in

the sense that the information put forth is believed or

appropriately accepted by the affiant as true." Id. at 164-65.

Taking into consideration the practical limitations of drafting a

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warrant affidavit (for instance, "an affidavit may properly be

based on hearsay, on fleeting observations, and on tips received

from unnamed informants"), id. at 167, the Court ultimately held

that when a "defendant makes a substantial preliminary showing that

a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant

affidavit, and if the allegedly false statement is necessary to the

finding of probable cause, the Fourth Amendment requires that [an

evidentiary] hearing be held at the defendant's request." Id. at

155-56. If the defendant shows at the evidentiary hearing "perjury

or reckless disregard," "the search warrant must be voided and the

fruits of the search excluded," unless there is another basis for

probable cause in the warrant besides the false statements. Id. at

156.

The high Court further mandated that to make a

substantial preliminary showing, a defendant must make "allegations

of deliberate falsehood or of reckless disregard for the truth . .

. accompanied by an offer of proof." Id. at 171. His "attack must

be more than conclusory and must be supported by more than a mere

desire to cross-examine." Id. He must "point out specifically the

portion of the warrant affidavit that is claimed to be false" and

accompany his allegations with a "statement of supporting reasons."

Id. "Affidavits or sworn or otherwise reliable statements of

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witnesses should be furnished, or their absence satisfactorily

explained." Id.

Against that backdrop, we turn to the specifics of Graf's

case.

No Substantial Preliminary Showing

During the trial court proceedings, Graf pressed that the

government's explanation of the discrepancies in the three

affidavits that named "11-25" made no sense, and so he needed a

hearing to determine whether the detective was telling the truth.

On appeal, however, Graf takes a different tact -- he instead

distinctly implores us not to consider any additional evidence or

justification from the government, urging that it is legal error to

do so. Thus, even though we know, now, that Gottardi may actually

have used the designation "11-25" to refer to three different

people in the three affidavits, Graf asks us not to consider that

explanation. Therefore, our review is limited to whether Graf's

motion for a Franks hearing and his accompanying evidence were

facially sufficient to make a substantial preliminary showing.9

9
We do not mean to suggest that Gottardi's explanation for
the affidavit discrepancies is necessarily a legitimate one. It's
difficult to imagine how a law enforcement agent -- maintaining
records of multiple criminal targets over a number of years --
would be able to keep straight several informants -- of similar
pedigrees and offering similar types of information -- by using one
number.
Of greater concern, however, is that, as the government
concedes, to adopt such a procedure is "highly irregular," and as
far as we can tell, there is no indication on this record that the
justice of the peace who reviewed Gottardi's warrant applications

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 For the reasons discussed below, we find that Graf did

not meet his burden.

Graf argues that he successfully demonstrated that

Gottardi lied in the Graf affidavit in two ways. First, Graf

argues, Gottardi swore in the April 2011 affidavit that "11-25

ha[d] been a very reliable informant . . . for the past several

years," and that he had been able to get sign-off on "numerous"

warrants by utilizing information he got from 11-25. But, Graf

contends, a review of the warrant applications filed by the

Somerset Sheriff's office from April 2009 to April 2011 showed that

none actually listed "11-25" as an informant. Second, in two

warrant applications filed after Graf's, both Gottardi and his

colleague claimed to have relied on tips from "11-25." But, Graf

argues, in both of those affidavits and in the Graf affidavit, the

was aware that Gottardi took up such an unusual practice. To
alleviate this concern, which was shared by the magistrate judge,
the government argues that a "side-by-side comparison" of the three
affidavits "supports the conclusion that three different
individuals had been given the designation of CI 11-25." But as
our analysis shows, that is not necessarily so. An official
reviewing the three affidavits could easily interpret the
affidavits the way we do -- as slightly different from each other,
but not inconsistent, such that all three affidavits could be
describing the same informant. Thus, unless a justice of the peace
has some reason to know that police would be using the same (rather
specific) identifying number for multiple individuals, we agree
with the magistrate judge that such a practice is "potentially
misleading" and therefore "ill-advised." Because Graf did not
raise the argument on appeal, however, we do not have occasion to
decide today -- and therefore will not comment on -- which
direction the government's justification for the affidavit
discrepancies might have tipped the scale in this case.

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descriptions of "11-25" are all different, suggesting that "11-25"

doesn't really exist.

Graf's first point lacks luster. The fact that "11-25"

does not appear in earlier search warrant affidavits is not, on its

own, sufficient to make a substantial showing that Gottardi lied.

As the magistrate judge indicated, it makes sense that to protect

an informant's identity, law enforcement would use different

numbers to identify the same person, and the Graf affidavit

specifically stated that "said informant is herein referred to as

11-25." (Emphasis added). Thus, Gottardi's statement did not

foreclose the possibility that the informant was identified by some

other number in other warrant applications.

But Graf's second point gives us pause. In two warrant

applications filed after Graf's (in July and October 2011),10

Gottardi and a staff sergeant, Michael W. Knight, claimed to have

relied on 11-25's tips. As Graf points out, however, in all three

affidavits, the descriptions of 11-25 are a little different.

Specifically, in the Graf affidavit, filed in April,

Gottardi says that "11-25": (1) helped him get "drug search

warrants" resulting in "numerous persons being charged and

convicted of various felony/misdemeanor drug offenses"; (2) was a

"drug user" with a "criminal record, to include convictions for

10
The July and October 2011 affidavits don't appear to be
related to Graf's case.

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drug related offenses"; (3) over the past several years, had

"routinely assisted . . . in apprehending drug dealers, without

requesting any type of consideration," while other times assisting

"to hopefully gain consideration on pending criminal charges

against" him; and (4) had no charges pending against him at the

time and did not ask for anything in return for providing the

information that incriminated Graf.

Then in the July 2011 application, Gottardi described

"11-25" like this: (1) he had helped Gottardi "solve[] numerous

felony level crimes, to include Robbery, burglaries and drug

cases"; (2) had made controlled drug buys for police; (3) had

"routinely assisted . . . over the past several years, without

requesting any type of consideration," and had provided assistance

even when he did not have criminal charges pending against him; (4)

had a criminal record, including "felony level convictions"; (5)

was a "past known drug dealer/drug user"; and (6) did not have any

criminal charges pending against him at the time or request any

consideration for helping out with the case.

Finally, in the October 2011 affidavit, Knight stated

that Gottardi told him "11-25": (1) was a "known drug user"; (2)

who had made controlled drug purchases for police; and (3) was

"presently assisting [Gottardi] with apprehending drug dealers . .

. in hopes that the District Attorney will take [his] cooperation

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into consideration, regarding felony level criminal charges that

are presently pending against [him]."

Graf argues that "taken together [these descriptions]

raise a substantial question about just how many different crimes

one confidential informant could have reported to Gottardi." A

closer look, however, shows that while the descriptions of "11-25"

are not identical in the three affidavits, as Graf concedes, the

descriptions "are not necessarily inconsistent." To be sure, only

the July warrant application mentions robberies and burglaries (the

other two affidavits focus exclusively on drug-related crimes).

But as we noted above, we view search warrant affidavits under a

lens of presumed validity, and theft is not so far-removed from

drug-dealing that it would raise an eyebrow that 11-25 had

knowledge of both types of crimes. Further, that Gottardi

mentioned robberies and burglaries in only the July affidavit, and

not in the others, does not mean we should infer that 11-25 is not

the same person in all three. Gottardi could simply have failed to

mention the theft crimes in the April and October affidavits.

Finally, while 11-25 did not have any charges pending against him

in April or July, it's certainly possible that he caught one by the

time October rolled around.

Thus, even without taking into account the government's

explanation for the affidavits' discrepancies, we do not have a

"definite and firm conviction" that Gottardi lied in his April 2011

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affidavit, such that we could say that the lower court clearly

erred in denying Graf's request for a Franks hearing. Indeed, all

three descriptions of 11-25 paint a picture of a drug user who,

when he feels so inclined and probably to squirrel away the good

favor of police in case he needs it later, helps cops catch drug

dealers.

As we have acknowledged in the past, making a substantial

preliminary showing is no easy feat, particularly when law

enforcement relies on tips from unnamed confidential informants.

See United States v. Higgins, 995 F.2d 1, 3 (1st Cir. 1993) ("When

the government obtains a search warrant based on information

provided by a confidential informant, defendants often lack the

information required to meet the exacting standards of Franks.").

Graf, like many other defendants in the same boat, has simply

failed to meet his burden of making a substantial preliminary

showing -- particularly under the deferential clear error standard

of review we afford to a court's denial of a Franks hearing.

Given our holding, then, we need not reach whether the

magistrate judge procedurally erred in crediting the government's

side of the story before making a final ruling on Graf's Franks

motion -- as we discussed above, Graf's submissions fail to make

the requisite showing.

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 Motion to Suppress

We also briefly address Graf's secondary argument that

even if it were proper for the trial court to consider the

government's evidence in making its Franks ruling, we should "still

vacate the denial of the motion to suppress on the ground that the

government should not have been permitted to investigate itself."

"In order for a warrant to be voided and the fruits of

the search excluded, the defendant must meet an even more exacting

standard [than for a Franks hearing]: he must (1) show that the

affiant in fact made a false statement knowingly and intentionally,

or with reckless disregard for the truth, (2) make this showing by

a preponderance of the evidence, and (3) show in addition that with

the affidavit's false material set to one side, the affidavit's

remaining content is insufficient to establish probable cause."

United States v. Tzannos, 460 F.3d 128, 136 (1st Cir. 2006)

(quoting Franks, 438 U.S. at 156) (quotations omitted).

As we discussed above, Graf has failed to show that

Gottardi made a false statement in his warrant affidavit, and

certainly has not done so by a preponderance of the evidence. Graf

also offers absolutely no law to support his contention that

although he failed to make a preliminary showing that Gottardi

lied, the magistrate judge was still under an obligation to probe

further, let alone order that an investigation be conducted by a

person of his choosing. Graf, in fact, does not even set out a

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standard of review for this inquiry. We consider the argument

waived for lack of development. See United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

CONCLUSION

For these reasons, we affirm the district court.

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