United States v. Owens

United States Court of Appeals
For the First Circuit

No. 16-1945

UNITED STATES OF AMERICA,

Appellee,

v.

GREGORY OWENS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Thompson, Circuit Judges.

Sarah A. Churchill, with whom Nichols & Churchill, P.A., was
on brief, for appellant.
John M. Pellettieri, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Sangita K. Rao,
Attorney, Appellate Section, Criminal Division, John P. Cronan,
Acting Assistant Attorney General, Criminal Division, Matthew S.
Miner, Deputy Assistant Attorney General, Criminal Division,
Halsey B. Frank, United States Attorney, Darcie McElwee, Assistant
United States Attorney, and James W. Chapman, Assistant United
States Attorney, were on brief, for appellee.

February 26, 2019
 TORRUELLA, Circuit Judge. This is a case about a double

life, an attempted uxoricide, and excellent police work.

Defendant-Appellant Gregory Owens ("Owens") was convicted of

interstate domestic violence in violation of 18 U.S.C. § 2261(a)(1)

and (b)(2); and discharge of a firearm during and in relation to

a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

He was sentenced to life in prison. On appeal, Owens challenges

the sufficiency of evidence supporting his convictions, the

reasonableness of his sentence, and the district court's denial of

his pretrial motions seeking to suppress evidence and dismiss the

indictment on double jeopardy grounds. After careful review, we

find Owens's convictions supported by sufficient evidence, his

sentence substantively reasonable, and the motions for suppression

and dismissal properly denied. Seeing no reason to vacate Owens's

convictions or sentence on the grounds that he has presented, we

affirm.

I. BACKGROUND

A. Factual Background

1. The Home Invasion

In the early morning hours of December 18, 2014, at

approximately 2:45 a.m., Carol Chabot ("Carol") awoke to a

shuffling noise coming from the downstairs of her two-story house

in Saco, Maine. Sensing something was not right, she woke her

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husband, Steve Chabot ("Steve"), who lay beside her. Steve,

however, did not hear the noise but told Carol "it's probably

Rachel" who caused the noise — with "Rachel" being Rachel Owens

("Rachel"), a family friend who was staying the night. Then Steve

rolled over to go back to sleep. Undeterred, Carol got out of bed

to investigate.

As she walked down the upstairs hallway, toward the spare

bedroom where Rachel was staying, Carol heard a second noise --

this time the loud sound of glass shattering. With haste, she

looked into the spare bedroom and noticed Rachel was sound asleep

in bed. Steve also heard the loud noise and hurried out of bed to

check what was going on. He peeked out of his bedroom towards the

staircase and saw an intruder racing up the stairs with a gun in

his right hand. The intruder, later identified as Owens, was

approximately 5 feet 9 inches tall with a slim, athletic build; he

wore dark clothing, gloves, and a black mask with a single opening

at the eyes and glasses protruding from it.

Steve shouted an expletive at the intruder and dashed

back into the master bedroom. Carol, who did not see the intruder

but saw a look of horror on her husband's face, ran into a third

bedroom used as a home office and barricaded herself inside. The

intruder followed her and tried to force his way into the room,

but, after a few failed attempts, suddenly stopped. He then walked

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toward the room where Rachel lay and fired at her three times,

hitting her in the head, arm, and torso.

Having heard the gun shots, Steve peeked out of the

master bedroom again. He saw the intruder about two feet away,

heading towards him. They looked at each other face to face.

Steve immediately slammed the door shut and held his arm against

it. Undaunted, the intruder kicked the door in, looked inside

through the now slightly-opened doorway, and fired shots through

the door, striking Steve in the arm, neck, and rib area.1 The

intruder then abandoned the Chabot residence. He did not take any

valuables with him.

2. The Crime Scene

In response to a 911 call from Steve Chabot received at

2:47 a.m., police arrived at the Chabot residence. During their

investigation of the crime scene, officers learned that the

intruder gained entry into the garage through a door located in

the back of the house, and into the interior of the Chabot

residence through a door located in the garage that led to the

kitchen. The upper part of this garage door was double-paned

glass, sectioned into nine squares by wood framing. The intruder

1 Both Rachel and Steve survived the incident, but it left Rachel
with a bullet lodged in her brain and severely limited use of her
right hand.

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broke the outer pane of the lower left square of glass, leaving

glass shards scattered on the floor and separating the inner pane,

which remained intact, from the door, thereby creating a gap that

allowed the intruder to reach in and unlock the deadbolt. Officers

retrieved human hair from the area between the shattered outer

pane of glass and the inner pane of glass, and swabbed the area

for DNA.

Police officers also recovered numerous .9mm shell

casings stamped "WCC 1987," later identified as 27-year-old

Western Cartridge Company casings, from the second floor of the

house.

Finally, while inspecting the periphery of the Chabot

residence, officers found a footprint in the damp dirt outside the

first-floor window near the garage and proceeded to make a cast of

it.

3. Search, Intervention, and Interview

At around 5:00 a.m., Maine police officers informed New

Hampshire law enforcement of the shooting at the Chabot residence.

Two New Hampshire police officers, Randy Dyer ("Officer Dyer") and

Keith Lee ("Officer Lee"), were instructed to visit Owens's

residence in the town of Londonderry to verify the presence of his

two vehicles. They were, however, instructed not to make contact

with Owens.

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 At approximately 5:20 a.m., the two police officers

arrived at Owens's neighborhood and parked their car at the

beginning of Winthrop Road, the dead-end street where Owens's

residence was located. Under the cover of darkness, they began

heading down Winthrop Road toward the house. At around 5:24 a.m.,

before the officers could reach their destination, a state trooper

patrol car with flashing blue lights drove near the Owens

residence. Contemporaneously, a light visible from the house's

front windows went off, making the inside of the house go dark.

The officers stopped the trooper and instructed him to turn off

the flashing lights. After this, the officers, now accompanied by

the trooper, continued their approach towards the residence. With

Officer Lee and the trooper providing cover, Officer Dyer

eventually made his way into the driveway, where he placed his

hand on Owens's Hyundai Santa Fe SUV ("Owens's vehicle") and

noticed its hood and grill were warm.2 The officers and trooper

then retreated back down Winthrop Road to the staging area.

Several minutes after arriving at the staging area, the

officers saw Owens's vehicle exit Winthrop Road and proceeded to

2 Owens's vehicle was parked on the upper part of his driveway,
with its nose facing the garage. The driveway is easily observable
and accessible to anyone passing by in the neighborhood. It is
not enclosed in any way, nor does it have any fences or signs
warning visitors to stay away.

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follow it. The vehicle stopped at a nearby Circle K store, where

Owens got out. The officers approached Owens and told him that

his wife had been shot. Owens acted surprised and complained of

chest pains, after which the officers requested medical attention

for him. While waiting for the medical personnel to arrive, the

officers saw blood, a pair of boots with wet stains, and a computer

hard drive inside Owens's vehicle. Owens agreed to go with the

officers to the police station for a videotaped interview (the

"police interview") after receiving medical assistance.

During the police interview, Owens provided a detailed

account of his night. Specifically, he explained, albeit with

some variation, that, after speaking to his wife Rachel at around

9:15 p.m., he went to bed, but got up a few times to work on his

computer on a proposal for a military consultancy contract with

the Ukrainian government that was due the next day. In particular,

Owens claimed that at around 2:30 a.m. –- fifteen minutes before

the Chabot residence was broken into -- he sent an e-mail to one

of his colleagues regarding a tweak to the proposal.

Owens also admitted to leaving his home on multiple

occasions throughout the course of the night and early morning:

first, to Circle K at around 12:30 a.m. to get a soda and

cigarettes; then, to Dunkin' Donuts between 4:15-4:45 a.m. to get

coffee and donuts; and finally, to Circle K again at around

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6:30 a.m. to grab another cup of coffee, at which point he came in

contact with officers Dyer and Lee. Furthermore, he informed the

interviewing officers that he was a military retiree and had what

he described as an "arsenal" of weapons in his house. After

collecting some evidence (e.g., DNA samples from his hands and

mouth, clothes, etc.), the police released Owens from custody.

4. The Double-Life and Motive

To fully understand the motive behind Owens's crime, we

must look back to the preceding decade. In 2005, Owens met Betsy

Wandtke ("Wandtke"), a woman from Wisconsin, in a flight back from

a hunters' rights convention, which they had both attended.3 About

three years later, their relationship turned into an affair. As

the affair progressed, Owens and Wandtke began to spend more time

together -- up to ten days a month. Owens considered Wandtke his

"lover" and his "life." He represented to her that he was in the

process of divorcing Rachel, which Wandtke was unable to

independently confirm, given that it was not true. To partly

explain his long absences when he was actually with Rachel in New

Hampshire, Owens told Wandtke that his work as a military

consultant required him to travel and take part in covert missions

in places like Afghanistan.

3 From the moment they met, Wandtke was aware of Owens's marriage.

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 While the affair continued, in or about 2011, Rachel

began to develop early-onset dementia. The responsibility of

having to care for her burdened Owens, but did not deter him from

continuing his affair with Wandtke. Then, on December 3, 2014,

the affair came to an abrupt end. Due to an inadvertent call from

Owens's mobile phone, Wandtke discovered that Owens was leading a

double-life -- his marriage with Rachel continued in regular

course. Wandtke confronted Owens about it and told him their

relationship was over.4 After a failed attempt to convince Wandtke

that she misunderstood the conversation she overheard, Owens

promised Wandtke he was going to make it up to her.

A mere fifteen days after the breakup, the events at the

Chabot residence unfolded. Furthermore, in the days following the

shooting, Owens contacted Wandtke via e-mail and told her that he

was being "targeted" because of his work and instructed her to "go

dark" and not tell anyone about their relationship. Then, on

December 31, 2014 -- thirteen days after the incident at the Chabot

residence and with his wife still recovering from a gunshot wound

4 Owens was with Wandtke in Wisconsin a little over a week before
their breakup. They had plans to celebrate Thanksgiving together.
Notwithstanding, the weekend before the holiday, Owens suddenly
cancelled their plans, leaving Wisconsin for a supposed emergency
covert mission in Afghanistan. Then, on December 3, 2014, Wandtke
found out that Owens was not in Afghanistan, but rather with Rachel
in New Hampshire, as the result of the accidental call made from
Owens's cell phone.

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to the head -- Owens unexpectedly arrived at Wandtke's doorstep

with a limousine and roses. Owens and Wandtke celebrated New

Year's Eve and spent time together during the first week of 2015.

On January 4, 2015, Owens returned to New Hampshire. Shortly

thereafter, on January 11, 2015, Owens was arrested.

B. Procedural Background

On March 11, 2015, a grand jury indicted Owens on two

counts: interstate domestic violence (Count One) and discharge of

a firearm during and in relation to a crime of violence (Count

Two). On July 6, 2015, Owens filed a motion to dismiss the

indictment on double jeopardy grounds; a motion to suppress

evidence gathered as the result of the entry into his property,

namely, into his driveway; and, a motion to suppress search

warrants issued and executed during the investigation for his

vehicles and house, electronic items (e.g., an iPhone, Magellan

GPS, etc.), and an external hard drive and a laptop computer in a

Swiss Army case.5 The district court held an evidentiary hearing

5 Owens also moved to suppress DNA evidence obtained from a blood
sample collected at the Chabot residence, and from a buccal swab
law enforcement performed on his cheeks during the police
interview. Owens, however, eventually withdrew his motion as to
the blood sample collected from the Chabot residence.
Notwithstanding, we note that a heading in his brief makes specific
reference to the collection of the blood sample, which may be
interpreted to suggest his intent to still seek suppression of the
DNA test results obtained therefrom. The Government attributes
Owens's reference to the collection of the blood sample in the
heading to human error. It asserts that the section with this

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on Owens's motion to dismiss and motions to suppress. Evidence

was presented, including the testimony of the officer who touched

Owens's vehicle, as well as that of the officers who drafted the

affidavits on which the search warrants were based. Unpersuaded,

the district court denied Owens's motions to dismiss and to

suppress.

A ten-day jury trial followed. The jury found Owens

guilty of both counts. For these charges, the district court

sentenced Owens to life imprisonment (240 Months on Count One and

Life on Count Two). Owens timely appealed.

II. ANALYSIS

A. Motion to Suppress Evidence Gathered as a Result of Officer
Dyer's Entry into the Driveway

We review a district court's denial of a motion to

suppress scrutinizing its factual findings for clear error and its

legal conclusions de novo. United States v. Flores, 888 F.3d 537,

543 (1st Cir. 2018) (citations omitted); United States v. Brown,

heading actually deals with Owens's challenge to a search warrant
affidavit that mentions DNA evidence obtained from Owens's police
interview buccal swab. See infra at 21-24. Based on the section's
content, we agree. Neither there nor anywhere else in his brief
does Owens develop an argument for suppression of the DNA test
results obtained from the collection of a blood sample at the
Chabot residence. Accordingly, Owens must "forever hold [his]
peace" with the Government's use of this evidence. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (citations and internal
quotation marks omitted).

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510 F.3d 57, 64 (1st Cir. 2007). To succeed on appeal, a defendant

"must show that no reasonable view of the evidence supports the

district court's decision." United States v. Dunbar, 553 F.3d 48,

55 (1st Cir. 2009) (citations and internal quotation marks

omitted).

Owens argues that Officer Dyer's entry into his driveway

and touching of his vehicle parked therein constituted an illegal

search because the driveway formed part of his house's curtilage

and, therefore, was protected from warrantless searches by the

Fourth Amendment. Accordingly, he sustains that the district court

erred in denying the suppression of evidence obtained as a result

of the search, namely, any reference to the temperature of his

vehicle's hood and grill.

The Fourth Amendment provides in relevant part that the

"right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not

be violated." U.S. Const. amend. IV. "When the Government obtains

information by physically intruding on persons, houses, papers, or

effects, a search within the original meaning of the Fourth

Amendment has undoubtedly occurred." Florida v. Jardines, 569

U.S. 1, 5 (2013) (citations and internal quotation marks omitted).

For Fourth Amendment purposes, a house's curtilage is

"the area immediately surrounding and associated with the home."

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Id. at 6 (citation and internal quotation marks omitted). "The

protection afforded [to a house's] curtilage is essentially a

protection of families and personal privacy in an area intimately

linked to the home, both physically and psychologically, where

privacy expectations are most heightened." California v. Ciraolo,

476 U.S. 207, 212–13 (1986). Therefore, "[w]hen a law enforcement

officer physically intrudes on the curtilage to gather evidence,

a search within the meaning of the Fourth Amendment has occurred.

. . . Such conduct thus is presumptively unreasonable absent a

warrant." Collins v. Virginia, 138 S. Ct. 1663, 1670 (2018)

(citation omitted).

In determining whether a specific part of a house falls

within its curtilage, we consider:

[1] the proximity of the area claimed to be curtilage to
the home, [2] whether the area is included within an
enclosure surrounding the home, [3] the nature of the
uses to which the area is put, and [4] the steps taken
by the resident to protect the area from observation by
people passing by.6

Brown, 510 F.3d at 65 (alterations in original) (quoting United

States v. Diehl, 276 F.3d 32, 38 (1st Cir. 2002) (quoting United

States v. Dunn, 480 U.S. 294, 301 (1987))). In the instant case,

6 These factors are eponymously called the Dunn factors after the
Supreme Court's seminal opinion in United States v. Dunn, 480 U.S.
294 (1987). See, e.g., United States v. Bain, 874 F.3d 1, 14 (1st
Cir. 2017).

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however, we need not address these factors given that, even

assuming that the driveway formed part of the house's curtilage,

Officer Dyer faced exigent circumstances when he entered the

driveway and placed his hand on Owens's vehicle, which

circumscribes his warrantless search within the bounds of the

Fourth Amendment. We explain.

Although generally a warrant must be secured before

searching a home and its curtilage, "the warrant requirement is

subject to certain reasonable exceptions." Kentucky v. King

(King), 563 U.S. 452, 459 (2011) (citation omitted). These

exceptions are born out of courts' need to "balance the privacy-

related and law enforcement-related concerns to determine if the

intrusion was reasonable" under the Fourth Amendment. Maryland v.

King, 569 U.S. 435, 448 (2013) (quoting Illinois v. McArthur, 531

U.S. 326, 331 (2001)). "One well-recognized exception applies

when 'the exigencies of the situation make the needs of law

enforcement so compelling that [a] warrantless search is

objectively reasonable under the Fourth Amendment.'" King, 563

U.S. at 460 (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978));

see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016)

("The exigent circumstances exception allows a warrantless search

when an emergency leaves police insufficient time to seek a

warrant." (citing Michigan v. Tyler, 436 U.S. 499, 509 (1978))).

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This exception, commonly known as the "exigent circumstances

exception," has been applied in instances where the "need 'to

prevent the imminent destruction of evidence'" justifies a

warrantless search. King, 563 U.S. at 460 (citing Brigham City,

Utah v. Stuart, 547 U.S. 398, 403 (2006)).

In determining whether exigent circumstances justify a

warrantless search, we examine the totality of the circumstances.

Missouri v. McNeely, 569 U.S. 141, 149 (2013). Accordingly, in

the present case we begin by considering the gravity of the crime

being investigated and the weather conditions at the time of the

search to ascertain the constitutionality of Officer Dyer's

actions. Officer Dyer was investigating a crime of the most

serious nature, a potential double-homicide, on a cold December

morning. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984); United

States v. Veillette, 778 F.2d 899, 902 (1st Cir. 1985) (listing

the "gravity of the underlying offense" as one of the factors that

courts must consider "[i]n determining whether the circumstances

of a case fall into one of the emergency conditions characterized

as exigent circumstances"). As conceded by Owens's counsel at

oral argument, the temperature in Londonderry, New Hampshire at

the time of the search was 30 degrees Fahrenheit. In this cold

weather, it was reasonable for Officer Dyer to believe that any

warmth emanating from the vehicle -- the evidence -- would evanesce

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or be destroyed before he could obtain a search warrant.

It is not unprecedented to make a finding of exigency

based on a naturally occurring event's destructive consequence

over critical evidence. In McNeely, the Supreme Court recognized

that the "the natural dissipation of alcohol in the blood may

support a finding of exigency in . . . specific case[s]." 569

U.S. at 156. Such was the case in Schmerber, where the Court

concluded that "further delay in order to secure a warrant after

the time spent investigating the scene of the accident and

transporting the injured suspect to the hospital to receive

treatment would have threatened the destruction of evidence" given

that it would have "negatively affect[ed] the probative value of

the [blood alcohol test] results." McNeely, 569 U.S. at 152

(citing Schmerber v. California, 384 U.S. 757, 770-71 (1966)).

We do not find it difficult to draw parallels between

the exigent circumstances found in Schmerber and those in the

instant case. Unlike other "destruction-of-evidence cases" in

which a "suspect has control over easily disposable evidence,"

here, like in Schmerber, law enforcement dealt with the type of

"evidence [that]. . . naturally dissipates over time in a gradual

and relatively predictable manner." Id. at 153. Just as the

passing of time negatively affected the probative value of the

blood-alcohol test in Schmerber, it negatively affected the

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probative value of Officer Dyer's gauging of the temperature of

Owens's vehicle through his sense of touch, and, as such,

threatened the destruction or loss of evidence. See id. at 152.

The natural dissipation of the vehicle's heat, however,

was not the only way the evidence could have been lost in the

present case. If Owens turned on his vehicle's engine, as he

eventually did, the evidence would have likewise been destroyed.

Ignition would have made it practically impossible for law

enforcement to know, based on touch, whether the vehicle was

previously warm. In deciding whether to enter the driveway and

touch Owens's vehicle, Officer Dyer was "forced to make [a] split-

second judgment[] -- in circumstances that [were] tense,

uncertain, and rapidly evolving." United States v. Almonte-Báez,

857 F.3d 27, 31 (1st Cir. 2017) (quoting King, 563 U.S. at 466).7

Because a light inside Owens's house was shut off a few minutes

before his entry into the driveway, Officer Dyer had an objectively

reasonable basis to believe Owens was awake and therefore capable

of exiting his house and turning on his vehicle at any moment,

thereby destroying the evidence. These circumstances, considered

7 Apart from knowing that Owens was being investigated in relation
to a double-shooting, officers Dyer and Lee were aware that Owens
had a military background and possessed firearms in his house.
Also, they did not want to be seen because their instructions were
to verify the presence of Owens's vehicles without making contact
with him.

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in conjunction with the inevitable natural dissipation of the

vehicle's warmth, support a finding of exigency and, thus, of

reasonableness as to Officer Dyer's search. See Almonte-Báez, 857

F.3d at 32 ("[T]he government . . . may invoke the exigent

circumstances exception when it can identify an 'objectively

reasonable basis' for concluding that, absent some immediate

action, the loss or destruction of evidence is likely." (citation

omitted)).

Finally, the scope and intrusiveness of Officer Dyer's

search also weigh in favor of its reasonableness. See Maryland v.

King, 569 U.S. at 448 ("Th[e] application of 'traditional standards

of reasonableness' requires a court to weigh 'the promotion of

legitimate governmental interests' against 'the degree to which

[the search] intrudes upon an individual's privacy.'" (quoting

Wyoming v. Houghton, 526 U.S. 295, 300 (1999))). The scope of

Officer Dyer's search was limited to verifying the temperature of

Owens's vehicle, and its intrusiveness was minimal -- Officer Dyer

simply placed his hand on the vehicle's hood and grill for a few

seconds. Cf. Schmerber, 384 U.S. at 770-72 (holding that drawing

a drunk-driving suspect's blood was reasonable); Cupp v. Murphy,

412 U.S. 291, 296 (1973) (holding that the "ready destructibility

of the evidence" and the suspect's observed efforts to destroy it

"justified the police in subjecting him to the very limited

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search," the scraping of his fingernails, which was "necessary to

preserve the highly evanescent evidence they found under his

fingernails"); Nikolas v. City of Omaha, 605 F.3d 539, 546 (8th

Cir. 2010) (holding that the exterior search of a garage, which

warrants "protection comparable to that afforded the curtilage of

a residence," by "look[ing] through the windows was

constitutionally reasonable").

In short, based on our fact-bound and case-specific

inquiry, we conclude that Officer Dyer's warrantless search of

Owens's vehicle while parked in his house's driveway did not offend

the Fourth Amendment because, within the totality of the

circumstances, it was objectively reasonable for Officer Dyer to

believe the search was necessary to prevent the imminent

destruction of evidence.8

8 Even if we were to find that the district court erred in denying
Owens's motion to suppress evidence referencing the temperature of
his vehicle, we would deem such error harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24 (1967); see
also Chambers v. Maroney, 399 U.S. 42, 53 (1970). As discussed in
detail below, the Government presented a plethora of evidence
unrelated to the temperature of Owens's vehicle that provided a
more than compelling basis for Owens's convictions. See infra at
26-29; see also United States v. Jiménez, 419 F.3d 34, 42 (1st
Cir. 2005) (finding harmless error when erroneously admitted
evidence "pale[d] in light of the other evidence introduced at
trial").

By the same token, the very limited evidence regarding the
temperature of Owens's vehicle was inconsequential and cumulative.
See Harrington v. California, 395 U.S. 250, 254 (1969) (recognizing
that cumulative nature of contested evidence is a factor that

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B. Motion to Suppress the Search Warrants

During the investigation of Owens's crimes, a total of

five search warrants were issued.9 On appeal, Owens argues that

the district court erred in denying his motion to suppress the

evidence seized pursuant to all the warrants, albeit on two

different grounds. He challenges the first four warrants arguing

that the affidavits on which they were based contained false or

misleading information.10 Specifically, Owens sustains that these

contributes to the conclusion that any error in admitting the
evidence was harmless). To the extent that the warmth emanating
from Owens's vehicle was probative, it served to suggest that his
vehicle had been recently used. But it was essentially conceded
that Owens had left his house and driven his vehicle in the hours
surrounding the incident at the Chabot residence. Owens himself
testified that he left his house multiple times that night and
early morning. Still more, video surveillance footage placed him
outside of his house and at Dunkin' Donuts not long after the time
of the incident. Unsurprisingly, in its closing statement the
Government did not once meaningfully refer to the temperature of
Owens's vehicle.

Thus, viewed in context, the evidence that Owens's vehicle felt
warm when Officer Dyer touched it was simply unessential to both
the Government's case and the jury's guilty verdicts. See United
States v. Hasting, 461 U.S. 499, 506 (1983) ("Supervisory power to
reverse a conviction is not needed as a remedy when the error to
which it is addressed is harmless since by definition, the
conviction would have been obtained notwithstanding the asserted
error.").
9 Two state courts, New Hampshire's Salem Circuit Court and
Maine's Biddeford District Court, and the United States District
Court for the District of Maine issued the search warrants Owens
challenges on appeal.
10 In his brief, Owens also posits that the district court erred
because on their face the search warrant affidavits did not support

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four affidavits contain certain misstatements, omissions, and

inconsistencies that affected the issuing judges' probable cause

determinations. Owens challenges the fifth warrant to the extent

its supporting affidavit relied on: (1) evidence seized pursuant

to one of the four prior "faulty warrants," or (2) the match

between DNA collected from the crime scene and the DNA obtained

from the buccal swab taken during the police interview, which Owens

avers was obtained "due to [his] uninformed and/or involuntary

consent." On these grounds, Owens contends that we should

invalidate the warrants or, in the alternative, remand to the

district court for a hearing to "fully determine the depth and

breadth" of the purported inaccuracies. We disagree.

Affidavits supporting search warrants are presumptively

valid. United States v. Barbosa, 896 F.3d 60, 67 (1st Cir. 2018);

United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). A

defendant may "rebut this presumption and challenge the veracity"

of a warrant affidavit at a pretrial hearing commonly known as a

Franks hearing. Barbosa, 896 Fd.3d at 67 (quotation and citations

omitted); see also Franks v. Delaware, 438 U.S. 154, 171 (1978).

a finding of probable cause and did not establish a nexus between
the locations to be searched and the items sought. Owens, however,
does not support this argument with anything more than conclusory
statements. Accordingly, we deem it waived on appeal. Zannino,
895 F.2d at 17 (citations omitted).

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To be entitled to a Franks hearing, however, a defendant must first

make two "substantial preliminary showings: (1) that a false

statement or omission in the affidavit was made knowingly and

intentionally or with reckless disregard for the truth; and (2) the

falsehood or omission was necessary to the finding of probable

cause." United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012)

(citation and internal quotation marks omitted).11 A defendant's

"failure to make a showing on either of these two elements dooms

[his] challenge." McLellan, 792 F.3d at 208.

In its order denying Owens's motion to suppress the

evidence obtained pursuant to the search warrants, the district

court made a detailed assessment of Owens's claims as to each

misstatement and omission he identified in the affidavits. Order

on Def.'s Mots. to Suppress and Dismiss, United States v. Owens,

No. 2:15-CR-55-NT, 2015 WL 6445320, at *12-18 (D. Me. Oct. 23,

2015). In doing so, the district court concluded that Owens did

not make a showing of the two required elements -- intentionality

and materiality -- for any single misstatement or omission

contained in the affidavits. Id. Specifically, it found that the

misstatements and omissions were either the result of negligence

11 These showings are referred to as the "intentionality" and
"materiality" prongs of the Franks test. See, e.g., United States
v. Lull, 824 F.3d 109, 113-14 (4th Cir. 2016).

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or innocent mistakes, or had no bearing on the probable cause

determinations.12 Id. As to Owens's contention regarding his lack

of consent to the buccal swab during the police interview, the

district court reviewed video recordings of the interview and

concluded that Owens's consent "was voluntarily given, and not the

result of duress or coercion, express or implied." Id. at *3 n.2

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973)).

After a careful analysis of the record, we agree with

and adopt the district court's factual findings and legal

conclusions regarding Owens's failure to make the intentionality

and materiality showings that would entitle him to a Franks

hearing, and Owens's consent to the buccal swab during the police

interview. Accordingly, we find no error in the district court's

denial of Owens's motions to suppress the evidence seized pursuant

to the search warrants. See United States v. Arias, 848 F.3d 504,

511 (1st Cir. 2017) ("In considering a district court's decision

to deny a Franks hearing, we review factual determinations for

12 We note that, in support of his motion to suppress, Owens even
labelled as "recklessly false" statements that were actually true.
For example, Owens argued that one of the affidavits falsely
identified him as a suspect, but Owens was in fact a suspect at
the time the affidavit was submitted. The same goes for some of
the omissions on which Owens's motion rested. For example, he
claimed that one of the affidavits omitted that the Chabot
residence's intruder first attempted to gain entry into the room
where Carol was hiding, when the affidavit specifically mentioned
this fact.

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clear error and the probable cause determination de novo."

(citation omitted)); see also United States v. Tzannos, 460 F.3d

128, 136 (1st Cir. 2006) (recognizing that "a defendant must meet

a high bar even to get a Franks hearing").

C. Sufficiency of Evidence for Owens's Convictions

In reviewing sufficiency challenges, "[w]e view 'all

[the] evidence, credibility determinations, and reasonable

inferences therefrom in the light most favorable to the verdict[]

in order to determine whether the jury rationally could have found

that the government established each element of the charged offense

beyond a reasonable doubt.'" United States v. Valdés-Ayala, 900

F.3d 20, 30 (1st Cir. 2018) (quoting United States v. Serunjogi,

767 F.3d 132, 139 (1st Cir. 2014)). Our analysis "is weighted

toward preservation of the jury verdict." Rodríguez-Torres v.

Caribbean Forms Mfr., Inc., 399 F.3d 52, 57 (1st Cir. 2005). "[A]s

long as the guilty verdict finds support in a 'plausible rendition

of the record,' it must stand." United States v. Moran, 312 F.3d

480, 487 (1st Cir. 2002) (citation omitted). Importantly, as we

conduct our review, we place "no premium . . . upon direct as

opposed to circumstantial evidence" since "both types of proof can

adequately ground a conviction." United States v. Valerio, 48

F.3d 58, 63 (1st Cir. 1995) (quoting United States v. Ortiz, 966

F.2d 707, 711 (1st Cir. 1992)).

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 For Owens's conviction on Count One, interstate domestic

violence, the jury must have found that the Government proved

beyond reasonable doubt that: (1) Owens was married to Rachel; (2)

Owens traveled in interstate commerce -- in this case, from New

Hampshire to Maine -- with the intent to "kill [or] injure" Rachel;

(3) "as a result of such travel," Owens " commit[ted] or

attempt[ed] to commit a crime of violence" against Rachel; and

(4) a "life threatening bodily injury" resulted from Owens's

actions.13 18 U.S.C. § 2261(a)(1) & (b)(2). Meanwhile, for Owens's

conviction on Count Two, discharge of a firearm during and in

relation to a crime of violence, the Government had to prove that

"during and in relation to [a] crime of violence," namely the crime

of interstate domestic violence charged in Count One, Owens

knowingly "use[d] . . . a firearm" by discharging it "during and

in relation" to the commission of that crime. 18 U.S.C.

§ 924(c)(1)(A)(iii).

Owens's sufficiency challenge rests on the Government's

alleged failure to prove that Owens was the person who intruded

13 The Government sought to prove the fourth prong, that Rachel
sustained a "life threatening bodily injury," for purposes of 18
U.S.C. § 2261(b)(2), which provides a penalty of up to 20 years'
imprisonment if defendant's commission of interstate domestic
violence under § 2261(a) results in "permanent disfigurement or
life threatening bodily injury to the victim." 18 U.S.C.
§ 2261(b)(2).

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into the Chabot residence, and the purported impossibility of Owens

travelling from Londonderry to Saco, invading the Chabot

residence, and returning to Londonderry within a time frame of

approximately four hours and twenty-four minutes. Owens claims

that neither Carol, Steve, nor Rachel identified him as the

intruder. Furthermore, Owens stresses that Rachel identified the

intruder as a "dark skinned person with dread locks [sic]," which

does not match his physical description since he is a "white male

who does not have dread locks [sic]." As to the second ground of

his sufficiency challenge, Owens claims that, because he was

present in Londonderry at 12:11 a.m. and 4:35 a.m., as reflected

by two store's video surveillance footage, it was impossible for

him to have been present in Saco when the shooting took place,

2:45-2:47 a.m. He focuses on the amount of time it would have

taken him to make the trip back from Saco to Londonderry. In

particular, Owens contends that a trip from the Chabot residence

in Saco to Londonderry would take him at least two hours and

fifteen minutes, while under the Government's theory it took him

approximately one hour and forty-eight minutes. We are not

persuaded.

As the Government avers, the jury was presented a vast

amount of direct and circumstantial evidence identifying Owens as

the Chabot residence intruder. Specifically, the Government

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identifies the following incriminating evidence presented at

trial: (1) laboratory testing confirming that Owens's DNA was found

in an area where the two window panes had been affixed to each

other -- an area that would not have been exposed until the

intruder shattered the outer pane -- as well as in the door handle

and deadlock used to access the Chabot residence; (2) boot prints

and a cast of boot impression taken from the scene that matched

the boots found in Owens's car a few hours after the incident;

(3) testimony regarding bloodstains found on the armrest of the

driver's door and inside the driver's door of Owens's vehicle a

few hours after the incident; (4) Steve's testimony identifying

the intruder as a person with a similar physique to Owens's and

who, like Owens, wore glasses; (5) expert testimony revealing

Owens's efforts to manipulate his laptop's clock to make it seem

that he was at his Londonderry home at the time of the incident;

and, relatedly, (6) testimony regarding Owens's attempt to

manufacture an alibi by having his former boss lie to law

enforcement about a Skype call that never took place. This

evidence, in conjunction with the rest of the evidence presented

at trial, allows a reasonable jury to conclude beyond reasonable

doubt that it was Owens who broke into the Chabot's residence.14

14 Although not specifically listed by the Government as evidence
that led the jury to identify Owens as the Chabot residence's
intruder, we note that the .9mm ammunition stamped "WCC 1987" and

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 Owens's reference to Rachel's alleged identification of

the intruder as a "dark skinned person with dread locks [sic],"

which we read as an attempt to highlight evidence of exculpatory

nature, does not help him. We are not to "weigh the evidence or

make credibility judgments" in our sufficiency review, as "these

tasks are solely within the jury's province." Serunjogi, 767 F.3d

at 139 (quoting United States v. Hernández, 218 F.3d 58, 64 (1st

Cir. 2000)).15

Finally, as to the alleged impossibility of Owens making

the trip back from Saco to Londonderry in less than two hours and

fifteen minutes, the jury was presented with ample testimonial

evidence, including Owens's own trial testimony, reflecting that

this ninety-mile trip usually took about one hour and thirty

minutes. Moreover, Carol testified that Owens frequently bragged

about making the trip in just over an hour. Accordingly, the jury

was presented with sufficient evidence to conclude that Owens's

Londonderry-Saco roundtrip would have lasted three hours or less,

dark clothes seized from Owens's house also strongly support the
jury's guilty verdicts. The .9mm ammunition casings matched the
shell casings recovered from the Chabot residence, while the dark
clothes, some of which was found in Owens's washing machine,
matched that worn by the residence's intruder.
15 In any event, we note that the record is devoid of any testimony
describing the intruder as such. What Rachel did testify was that
the intruder was wearing a "Jamaican hat" or "floppy [black] hat."

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which fits easily within the four hour and twenty-four-minute

window separating the two instances in which he was recorded at

the Londonderry stores.

Based on the foregoing analysis, we conclude that there

was sufficient evidence to support Owens's convictions.

D. Reasonableness of Owens's Life Sentence

Owens challenges the procedural and substantive

reasonableness of his sentence. He claims the district court erred

procedurally by not considering some factors outlined in 18 U.S.C.

§ 3553, and that it substantively erred in imposing a life

sentence.

Our review is bifurcated. First, we ensure the district

court did not commit any procedural errors, such as "failing to

consider the section 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the

chosen sentence." United States v. Gierbolini-Rivera, 900 F.3d 7,

12 (1st Cir. 2018) (citation omitted). If a sentence is

procedurally sound, we proceed to the second step of our inquiry:

determining whether the sentence is substantively reasonable. Id.

In reviewing the substantive reasonableness of a sentence, we

"focus[] on the duration of the sentence in light of the totality

of the circumstances." Id. (citing United States v. Del Valle-

Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014)). Although a district

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court is "under a mandate to consider a myriad of relevant

factors," the weight it decides to afford to those factors is

"largely within the court's informed discretion." United States

v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011); see also 18 U.S.C.

§ 3553(a). We will ultimately find a sentence substantively

reasonable "so long as the sentencing court has provided a

'plausible sentencing rationale' and reached a 'defensible

result.'" Gierbolini-Rivera, 900 F.3d at 12 (citing United States

v. Martin, 520 F.3d 87, 96 (1st Cir. 2008)).16

Because Owens failed to preserve his objection below, we

review his procedural challenge based on the district court's

alleged failure to consider § 3553(a) factors for plain error.

Id. at 13. Hence, for Owens's procedural challenge to succeed, he

must show: "(1) that an error occurred, (2) which was clear or

obvious and which not only (3) affected the defendant's substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of judicial proceedings." Id. at 12 (citations

16 In considering a challenge to the substantive reasonableness
of a sentence preserved below, this court applies the abuse of
discretion standard. Gierbolini-Rivera, 900 F.3d at 14. Owens,
however, did not object to his life sentence below. In such cases,
it remains an open question in this Circuit whether the abuse of
discretion standard or the plain error standard applies. Id. at
15 (citation omitted). Notwithstanding, we need not decide this
issue in the instant case given that Owens's claim fails under
both.

-30-
omitted).

Owens's procedural challenge to his sentence fails on

the first prong of the plain error test. The record reveals that

the district court took into consideration all the mitigating

factors Owens claims it did not, namely, his military accolades,

lack of criminal history, productive work history, and age. See

18 U.S.C. § 3553(a) (stating that a sentencing court "shall

consider . . . the history and characteristics of the defendant").

The district court, however, weighed these mitigating factors

against the following aggravating factors: the severity of the

crime; Owens's premeditation, given that he planned to kill Rachel

both to avoid the responsibility of caring for her as she suffered

from dementia and to be able to continue his affair, while avoiding

the scorn that divorcing Rachel would have caused; the attempted

murder of a witness and friend, Steve, to prevent him from

identifying Owens as the intruder; Owens's deceitful character, as

revealed through his participation at trial and during allocution;

and, finally, the need to protect the public, among others. See

id. This balancing of sentencing factors "is precisely the

function that a sentencing court is expected to perform," United

States v. Ledée, 772 F.3d 21, 41 (1st Cir. 2014) (citation

omitted), and we find that the district judge did not procedurally

err, plainly or otherwise, while carrying it out in the present

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case.

Further, the district court thoroughly explained the

rationale behind Owens's life sentence. Apart from the factors

listed above, it emphasized Owens's "cold-blooded behavior . . .

[and] obvious lack of conscience," as well as the "long lasting

emotional damage to both Chabots" and the severity of the injuries

inflicted on Rachel. Considering the totality of the

circumstances of Owens's crime, we find that the district court's

life sentence is a defensible result. See Gierbolini-Rivera, 900

F.3d at 12. Accordingly, we conclude that the district court did

not substantively err.

E. Motion to Dismiss the Indictment on Double Jeopardy Grounds

Finally, Owens claims that the district court erred in

denying his motion to dismiss the indictment on double jeopardy

grounds. The Double Jeopardy Clause "provides that no person may

be tried more than once 'for the same offence.'" Currier v.

Virginia, 138 S. Ct. 2144, 2149 (2018). It protects "an individual

against (1) a second prosecution for the same offense, following

an acquittal; (2) a second prosecution for the same offense,

following a conviction; and (3) multiple punishments for the same

offense." United States v. Stoller, 78 F.3d 710, 714 (1st Cir.

1996) (citation omitted). Owens, however, does not establish that

his double jeopardy challenge is premised on a prior criminal

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conviction, acquittal, or punishment for the same offenses for

which he was convicted and sentenced in this case.17 We thus find

no error in the district court's denial of his motion to dismiss

the indictment on double jeopardy grounds.

III. CONCLUSION

For the reasons explained above, each of Owens's claims

is unavailing. We therefore affirm the district court's denial of

his pretrial motions, his convictions, and sentence.

Affirmed.

17He does not even allege that he was subject to any prior criminal
prosecution for offenses resulting from the events that unfolded
at the Chabot residence.

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