16‐3246
United States v. Harris
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 11th day of July, two thousand
eighteen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 16‐3246
WILLIE HARRIS,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
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FOR DEFENDANT‐APPELLANT: BRYAN S. OATHOUT, Law Office of
Bryan S. Oathout; Rochester, New
York.
FOR APPELLEE: MARY C. BAUMGARTEN, Assistant
United States Attorney, for James P.
Kennedy, Jr., United States Attorney
for the Western District of New York;
Buffalo, New York.
Appeal from a judgment of the United States District Court for the
Western District of New York (Wolford, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Willie Harris appeals from a judgment entered September 16, 2016 in the
United States District Court for the Western District of New York (Wolford, J.)
convicting him after a jury trial on one count of possession of cocaine with intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c); one count of
possession of a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e); and one count of possession of an unregistered
short‐barreled shotgun, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and
5871. He was sentenced principally to 115 months’ imprisonment, to be followed
by six years of supervised release. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues presented for review.
1. Harris argues that the district court erred in failing to suppress evidence
seized from his apartment pursuant to a search warrant.
A June 2014 warrant was issued to search Harris’ apartment at 49 Troup
Street (Apartment 21) in Rochester, New York for evidence related to a human‐
trafficking investigation. The search warrant was based on an affidavit prepared
by FBI Special Agent Barry Couch. The officers found no evidence of human
trafficking, but during the search law enforcement officers found (among other
things) a short‐barreled shotgun, ammunition, cocaine, money, a digital scale,
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and small plastic baggies. Harris was charged on the basis of the evidence seized
during the arrest.
Harris’s suppression motion argued that “the search warrant affidavit
contained incomplete and inaccurate information.” App’x 231 (internal
quotation marks omitted). In particular, Harris submitted the affidavit of Sam
DiMaggio, the building superintendent, who averred that he did not make the
statements attributed to him in the search warrant affidavit. On the basis of this
evidence, Magistrate Judge Feldman conducted a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978). Judge Feldman issued a Report and
Recommendation recommending that the motion to suppress be denied, and the
district court adopted it in its entirety.
“On appeal from a district court’s ruling on a motion to suppress evidence,
we review legal conclusions de novo and findings of fact for clear error.” United
States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015) (internal quotation marks
omitted).1 Reversal for clear error is appropriate if after reviewing the record we
are “left with the definite and firm conviction that a mistake has been
committed.” Id. at 110. “We pay special deference to the district court’s factual
determinations going to witness credibility.” Id. at 108 (internal quotation marks
omitted).
“[A] district court may not admit evidence seized pursuant to a warrant if
the warrant was based on materially false and misleading information. . . .
[M]aterially misleading omissions as well as misrepresentations may be
challenged by the defense.” United States v. Levasseur, 816 F.2d 37, 43 (2d Cir.
1987) (citing Franks v. Delaware, 438 U.S. 154 (1978)). “[T]o suppress evidence
obtained pursuant to an affidavit containing erroneous information, the
defendant must show that: (1) the claimed inaccuracies or omissions are the
result of the affiant’s deliberate falsehood or reckless disregard for the truth; and
(2) the alleged falsehoods or omissions were necessary to the issuing judge’s
1 We have yet to decide whether, in reviewing a district court’s decision on a
motion to suppress evidence, we should view the evidence in a light most
favorable to the prevailing party or simply review for clear error. Id. at 110.
Because we conclude that Harris’ argument fails under either test, we need not
(and do not) decide the question here.
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probable cause or necessity finding.” United States v. Rajaratnam, 719 F.3d 139,
146 (2d Cir. 2013) (internal quotation marks and alterations omitted).
Harris identifies several inconsistencies between the search warrant
affidavit and testimony elicited during the Franks hearing, and offers them as
proof that the affidavit included materially false and misleading information.
First, Agent Couch omitted from the search warrant application that two
witnesses failed initially to identify the photograph of Harris when they were
shown a photo array. One was CW1, a 16‐year old woman who told law
enforcement officers that an individual named “Shawn” (later identified as
Harris) was pimping her from his apartment at 49 Troup Street; the other was
DiMaggio (referred to as CW3 in the warrant affidavit). However, Agent
Couch’s testimony establishes that, after CW1 was urged to consider the
importance of answering truthfully, she immediately pointed to the photograph
of Harris in the photo array. Agent Couch also explained that he did not include
the identification procedures used with DiMaggio because it was not needed to
establish probable cause.
Second, Harris points to DiMaggio’s testimony contradicting statements
attributed to him in the search warrant affidavit. DiMaggio testified that
(contrary to the warrant affidavit) Harris never propositioned him with a young
woman for prostitution purposes and that he never saw a lot of men coming out
of Apartment 21. However, the magistrate court assessed DiMaggio’s credibility
and concluded that his “testimony was hardly a model of clarity or consistency”
and that it was “all over the place,” App’x 241; and the district court found that
“DiMaggio repeatedly contradicted himself,” Id. at 315. DiMaggio’s testimony is
further undermined by the testimony of Geeta Vijay, the property manager for 49
Troup Street: Vijay testified that she was present when DiMaggio gave his initial
statement to law enforcement, that DiMaggio had said that Harris was
“pimping” a young woman, and that DiMaggio explained that Harris had
offered the woman to him for sex. Id. at 137.
Finally, Harris contends that Vijay denied in her testimony that she
identified Harris in a photo array, and argues that Vijay’s testimony thus
contradicted statements attributed to her in the warrant affidavit. But Vijay in
fact testified that she did not remember being shown the photograph, which is not
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inconsistent with Agent Couch’s testimony that, at that time, Vijay identified
Harris in a photo array. See Id. at 138, 147‐48.
Accordingly, the district court did not clearly err in finding that Agent
Couch’s testimony was “credible and fully consistent with the information he
utilized in his supporting affidavit.” Id. at 242; see also id. at 317. Harris has
failed to identify any evidence that the district court was misled by any
intentional or reckless statements or omissions in Agent Couch’s affidavit.
As to materiality, “the ultimate inquiry is whether, after putting aside
erroneous information and correcting material omissions, there remains a
residue of independent and lawful information sufficient to support a finding of
probable cause or necessity.” Rajaratnam, 719 F.3d at 146 (internal quotation
marks and alterations omitted). Even disregarding DiMaggio’s statements in the
search warrant affidavit, the affidavit was sufficient to support a finding of
probable cause: CW1 provided a detailed description of her prostitution
activities at 49 Troup Street (Apartment 21) and her relationship with “Shawn”;
and Agent Couch described the steps he undertook to identify Harris as the
individual living in that apartment and to match CW1’s description of Shawn
with Harris’ physical characteristics. See App’x 55‐57. Accordingly, Harris has
failed to show that any of the purportedly inaccurate or incomplete information
was material to the finding of probable cause.
2. Harris argues that the district court committed procedural error by
applying a two‐level enhancement for obstruction of justice pursuant to United
States Sentencing Guidelines § 3C1.1.
“On review of a district court’s decision to enhance a defendant’s sentence
for obstruction of justice, we accept the court’s findings of facts unless they are
clearly erroneous . . . [and] [w]e review de novo a ruling that the established facts
constitute obstruction of justice, giving due deference to the district court’s
application of the guidelines to the facts.” United States v. Agudelo, 414 F.3d
345, 348 (2d Cir. 2005) (citations and internal quotation marks omitted).
A district court may apply a two‐level enhancement for obstruction of
justice if
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(1) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any relevant conduct; or (B) a
closely related offense[.]
U.S.S.G. § 3C1.1. Conduct covered under this section of the Sentencing
Guidelines includes perjury. United States v. Dunnigan, 507 U.S. 87, 93‐94
(1993). “[B]efore applying an obstruction enhancement based on perjury, the
sentencing court must find by a preponderance of the evidence that the
defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the
intentional (b) giving of false testimony (c) as to a material matter.” United
States v. Thompson, 808 F.3d 190, 194‐95 (2d Cir. 2015) (internal quotation marks
omitted). A perjury enhancement is appropriate if the defendant “gives false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.”
Dunnigan, 507 U.S. at 94. “Although separate and clear findings on each element
of perjury are preferred, a general finding of obstruction that tracks those factual
predicates necessary to support a finding of perjury will suffice.” United States
v. Shonubi, 998 F.2d 84, 88 (2d Cir. 1993).
At sentencing, the district court made detailed findings supporting its
conclusion that at trial Harris intentionally testified falsely as to several material
issues: he denied telling law enforcement agents that a “sawed‐off little thing”
was in his residence; he denied admitting to agents that there was crack cocaine
in his apartment, which he sold for money; he claimed that he used the baggies
in his apartment to discard marijuana seeds, rather than packaging drugs for
sale; he denied responsibility for allowing his nephew to store the shotgun in his
apartment; and he denied using the scale found in his apartment for drug
distribution. App’x 1052‐53.
Most significantly, the district court determined that Harris committed
“clear cut perjury” when he testified that it was not his voice on a recorded
telephone call to his sister from the Monroe County jail. Id. at 1054. During the
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call, which was attributed to Harris through the inmate telephone system, Harris
stated that he was selling drugs and that he had been holding onto a shotgun for
his nephew, “Lil D.” Id. Harris testified that someone in jail was impersonating
him.
The district court concluded that Harris’ testimony was false by comparing
it to the testimony of law enforcement agents. The district court found that the
agents were credible, that Harris was not, and that the objective evidence (e.g.,
the gun, drugs, money, and digital scale found in Harris’ apartment)
corroborated the agents’ version of events. The district court also rejected Harris’
contention that his testimony was the result of confusion, mistake, or faulty
memory: even if Harris misunderstood the government’s questions on cross‐
examination, as he contends on appeal, that does not account for Harris’
testimony that it was not his voice on the recorded telephone call admitting that
he possessed the gun and sold drugs. We find no error in the district court’s
conclusion that Harris intentionally gave false testimony on a material matter
and that a two‐level enhancement for obstruction of justice was warranted.
We have considered Harris’ remaining arguments and conclude that they
are without any merit. The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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