Filed: Oct. 21, 2016
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4103 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEANN WHARTON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:13-cr-00043-ELH-1) Argued: September 20, 2016 Decided: October 21, 2016 Before WILKINSON, MOTZ, and HARRIS, Circuit Judges. Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkin
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4103 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEANN WHARTON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:13-cr-00043-ELH-1) Argued: September 20, 2016 Decided: October 21, 2016 Before WILKINSON, MOTZ, and HARRIS, Circuit Judges. Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkins..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEANN WHARTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Ellen L. Hollander, District Judge.
(1:13-cr-00043-ELH-1)
Argued: September 20, 2016 Decided: October 21, 2016
Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Harris joined.
ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Paul Nitze,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Judson T.
Mihok, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Joeann Wharton appeals her convictions of conspiracy,
making a false statement, theft, and embezzlement, all in
connection with her unlawful receipt of government benefits.
She principally contends that the district court should have
suppressed evidence found at her house. 1 Wharton maintains that,
in the affidavit supporting the search warrant for the house,
the affiant recklessly omitted material, exculpatory facts.
Because the inclusion of the omitted information would not have
defeated probable cause for the search, that information was not
material. Accordingly, we affirm the judgment of the district
court.
1Wharton also contends that the superseding indictment did
not provide her with adequate notice of the crimes charged and
that the differences between the superseding indictment and the
Government’s proof at trial constituted a prejudicial variance
requiring reversal. As the district court held, neither
argument is persuasive. The superseding indictment, like that
we held sufficient in United States v. Perry, 757 F.3d 166, 172
(4th Cir. 2014), tracked the statutory language and set forth
specific details about the nature of the charges; for instance,
the superseding indictment informed Wharton of the kind and
source of the funds she assertedly embezzled and the time during
which the alleged offenses took place. As for the divergence
between the superseding indictment and the evidence at trial,
the Government proved a narrower set of facts at trial than it
alleged in the superseding indictment, but the superseding
indictment alleged everything the Government proved at trial.
There was no reversible error. See United States v.
Allmendinger,
706 F.3d 330, 339 (4th Cir. 2013).
2
I.
After their mother’s death in 2002, Wharton’s two
granddaughters, Chaqueira Wharton and Essence Wharton, moved in
with her. Wharton applied for, and received, Social Security
survivors’ benefits on their behalf, obligating her to spend
those funds for their care. In July 2012, the Government
learned that the girls were not receiving the benefits, and
since 2009 had not even lived with Wharton in her house on
Utrecht Road in Baltimore, Maryland. The Government then
launched an investigation of Wharton’s use of the survivors’
benefits. Special Agent Mark Gray of the Social Security
Administration’s Office of the Inspector General headed that
investigation.
As part of his investigation, Agent Gray reviewed state and
federal records and interviewed Wharton’s two granddaughters,
Chaqueira Wharton and Essence Wharton, Wharton’s children LaSean
Wharton and Tasha Muriel, Wharton’s husband John Wharton, and
Wharton herself. Agent Gray’s investigation uncovered other
evidence of Wharton engaging in potentially fraudulent activity
involving government benefits. On January 31, 2013, a federal
grand jury indicted Wharton on two counts of theft of government
property in violation of 18 U.S.C. § 641 and 42 U.S.C.
§ 1383a(a)(3).
3
Five months later, on June 27, 2013, the grand jury issued
a sealed superseding indictment, which was unsealed on July 10,
2013. The superseding indictment charged both Joeann Wharton
and her husband, John Wharton, with multiple counts involving
conspiracy to embezzle, embezzlement, and making false
statements to obtain government benefits. On July 1, 2013,
while the superseding indictment remained sealed, Agent Gray
sought a search warrant of the Utrecht Road house to obtain
evidence about John Wharton. In the affidavit Agent Gray
offered in support of the search warrant, he set forth
substantial evidence of criminal activity by John Wharton and
asserted that John Wharton and Joeann Wharton lived together at
the Utrecht Road house. Upon consideration of the affidavit, a
magistrate judge issued the search warrant. Agent Gray and
another agent executed it the following day, uncovering a number
of documents relevant to the charges against both John Wharton
and Joeann Wharton.
Prior to trial, Joeann Wharton moved to suppress all the
evidence obtained in that search. She argued that Agent Gray
had recklessly omitted material exculpatory evidence from the
affidavit, namely that John Wharton lived only in the basement
of the house. The district court held a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978), to consider the
question. After a two-day evidentiary hearing, and an
4
additional day of oral argument, the district court largely
denied the suppression motion. 2
A lengthy trial followed at which the district court
admitted evidence obtained in the search of the common areas of
the house. The jury convicted Joeann Wharton of Social Security
fraud in violation of 42 U.S.C. § 1383a(a)(3), and convicted
both Joeann Wharton and John Wharton of conspiracy to embezzle
money from the United States in violation of 18 U.S.C. § 371,
two counts of making false statements to the SSA in violation of
42 U.S.C. § 1383a(a)(2), and two counts of embezzlement from the
United States in violation of 18 U.S.C. § 641.
II.
The critical information that Joeann Wharton maintains
Agent Gray recklessly omitted from his affidavit were facts
demonstrating that she and her husband “occupied different parts
2
The district court granted the motion with respect to
Joeann Wharton’s second floor bedroom and ordered that the
documents found there would not be admitted into evidence at her
trial. Although in its appellate brief, the Government contends
that the district court erred in suppressing these documents,
the Government acknowledges that in the district court it “did
not challenge” that decision, and simply asks us to affirm the
judgment of the district court. Brief of Appellee at 17, 26-31,
and 55. Thus, the Government has waived any challenge to the
order concerning Joeann Wharton’s bedroom, and we do not discuss
it further. We consider the adequacy of Agent Gray’s affidavit
only with respect to the remainder of the house and henceforth
characterize that portion of the house as “the common areas.”
5
of the house.” Brief of Appellant at 23. She contends that the
omission of these facts rendered Agent Gray’s affidavit
materially false in violation of the Fourth Amendment. See
Maryland v. Garrison, 480 U.S. 79, 85 (1987) (“Plainly, if the
officers had known . . . that there were two separate dwelling
units on the third floor of 2036 Park Avenue, they would have
been obligated to exclude respondent’s apartment from the scope
of the requested warrant.”).
The Utrecht Road house occupies three levels: a basement;
a main first floor; and an upstairs second floor. The second
floor contains two bedrooms and a bathroom. The first floor
consists of a kitchen, a living/dining area, and the front door
to the house. The basement consists of a bedroom, a separate
entrance, a half-bath, a refrigerator, and a microwave. An
interior door connects the first floor to the basement.
For the most part, Agent Gray’s ten-page, twenty-two
paragraph affidavit seeking a warrant to search the Utrecht Road
house for evidence of John Wharton’s criminal activity outlines
the nature of that activity. Agent Gray also made the following
representations as to the living arrangement within the house:
1) he and another agent interviewed John Wharton and Joeann
Wharton together at the Utrecht Road house; 2) at this
interview, “the Whartons stated that they had been married
continuously for 43 years, and that they lived together” in the
6
house; 3) the Baltimore Gas & Electric Company provides power to
the entire house through an account in John Wharton’s name; 4)
the Dish Network provides television service to the entire house
through an account listing both John Wharton and Joeann Wharton
as authorized users; and 5) Agent Gray knew “from interviews in
June 2013 with Lesean [sic] Wharton and his sister Tasha Muriel
that John and Joeann are currently living” in the house. Joeann
Wharton did not (and does not) challenge any of these facts.
What she contends is that Agent Gray recklessly omitted from his
affidavit other material information indicating that she and
John occupied distinct areas of the house.
After considering the evidence the parties produced at the
Franks hearing, the district court found that LaSean Wharton had
told Agent Gray that his parents slept in separate bedrooms but
shared a kitchen and common areas. The court found that Tasha
Muriel had told Agent Gray that both of her parents lived in the
Utrecht Road house, but John Wharton lived in the basement while
Joeann Wharton occupied the upstairs floors. According to
Muriel, although John Wharton would occasionally visit the
kitchen and dining areas, he did so by invitation only, mostly
at family gatherings. The district court further found that
Wharton’s granddaughters had told Agent Gray that they needed to
knock on an interior door to the basement, which typically
remained locked, on the rare occasions they went to their
7
grandfather’s part of the house. Finally, the court found that
some of Agent Gray’s notes and the documents he obtained during
his investigation indicated that Joeann Wharton lived separately
from John Wharton in the house. The district court concluded
that although Agent Gray recklessly omitted this information
from his affidavit, because it was not material, its omission
did not violate the Fourth Amendment. 3
3
In so holding, the court relied on the joint cable and
utility bills, the fact that Agent Gray interviewed John Wharton
and Joeann Wharton together in the Utrecht Road house, and their
representations as to a long-standing marriage during that
interview. The court also relied on two facts Agent Gray did
not include in his affidavit but that Wharton’s evidence at the
Franks hearing established: (1) Tasha Muriel told Agent Gray
that John Wharton would occasionally cook in the kitchen and had
access to the dining room; and (2) LaSean Wharton told Agent
Gray that John Wharton and Joeann Wharton shared a kitchen and
common areas. On appeal, the parties strongly dispute whether
the district court properly considered these two pieces of
additional evidence in assessing the materiality of Agent Gray’s
omissions. We have held that “[i]n evaluating whether probable
cause would have existed if the omitted statements had been
included,” a court must “only consider the information actually
presented to the magistrate during the warrant application” by
the Government. United States v. Lull, 824 F.3d 109, 119 n.3
(4th Cir. 2016) (internal quotation marks omitted). While Lull
precludes a court from relying on extrinsic evidence the
Government offers to bolster an affidavit facing a Franks
challenge, it does not speak to whether a court can consider
extrinsic evidence offered by a defendant. Given our holding,
we need not resolve that question in this case.
8
III.
With these facts in mind, we turn to the legal question
before us -- whether the district court erred in finding that
the omissions in the affidavit were not material, and so denying
Wharton’s suppression motion. When considering a district
court’s ruling on a suppression motion, “we review factual
findings for clear error and legal determinations de novo.”
United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010). We
“construe the evidence in the light most favorable to the
prevailing party,” here the Government, “and give due weight to
inferences drawn from those facts by resident judges and law
enforcement officers.”
Id. (internal quotation marks omitted).
The Fourth Amendment mandates that “no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
amend. IV. The district court properly recognized that Franks
governs Wharton’s challenge. 4 Defendants may bring Franks
challenges both when an affidavit contains a false statement and
4 Franks, and many of the cases applying it, involve
defendants claiming that the district court improperly denied
them an evidentiary hearing to test the integrity of the
affidavit supporting a search warrant. Of course, because the
district court granted Wharton a Franks hearing, and there is no
challenge to that decision, we do not address that preliminary
question here.
9
when the affiant has omitted material facts from the affidavit.
United States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016). To
establish a Franks violation, a defendant must prove that the
affiant either intentionally or recklessly made a materially
false statement or that the affiant intentionally or recklessly
omitted material information from the affidavit.
Id. Thus,
Franks requires proof of both intentionality and materiality.
Id. We need only discuss the materiality requirement here.
An omission is material if it is “necessary to the [neutral
and disinterested magistrate’s] finding of probable cause.”
Franks, 438 U.S. at 156. Even if relevant, information is not
material unless “its inclusion in the affidavit would defeat
probable cause.” See United States v. Colkley,
899 F.2d 297,
301 (4th Cir. 1990).
In assessing materiality, we “insert the facts recklessly
[or intentionally] omitted, and then determine whether or not
the corrected warrant affidavit would establish probable cause.
If the corrected warrant affidavit establishes probable cause,”
there is no Franks violation. Miller v. Prince George’s Cty.,
475 F.3d 621, 628 (4th Cir. 2007) (internal quotation marks and
citations omitted). Therefore, for Wharton to succeed on her
Franks challenge, she must demonstrate that the totality of both
the facts Agent Gray provided in his affidavit and the facts
that he omitted do not signal “a fair probability that . . .
10
evidence of [John Wharton’s] crime w[ould] be found” in the
common areas. See Illinois v. Gates, 462 U.S. 213, 238 (1983)
(defining the probable cause standard).
In Lull, we recently considered another Franks omission
challenge. We held that a law enforcement officer’s reckless
omission of facts from his affidavit, which undermined the
reliability of a confidential informant, were material and
required reversal of Lull’s conviction. 824 F.3d at 118-20.
There, a police officer had executed a search warrant of Lull’s
house and, in doing so, found drugs and weapons the Government
later used against him.
Id. at 113. In his application for a
search warrant, the officer swore that an undercover informant
had advised him that “Lull was selling quantities of Cocaine,
Marijuana and other illegal drugs from his home address,” and
that this informant “had recently bought illegal drugs
from . . . Lull.”
Id. The officer did not disclose, however,
that immediately after completing a controlled buy with Lull,
the informant tried to steal some of the money police had given
him to make the buy.
Id. at 112-13. We held that this omission
fundamentally undermined the informant’s reliability, thereby
invalidating the search warrant.
Id. at 111.
In assessing the materiality of that omission, we noted
that the informant supplied much of the factual basis for the
affidavit. Id. at 118. Because the confidential informant was
11
inherently unreliable, we excised his (otherwise-undisputed)
statements from the affidavit. Id. Without the informant’s
statements, nothing in the affidavit “identifie[d] Lull
specifically as the seller or otherwise connect[ed] him to the
drug transaction.”
Id. at 119. Accordingly, we held the
omission material.
Id. at 120.
Similarly, in United States v. Tate, 524 F.3d 449, 451 (4th
Cir. 2008), we held that a defendant should have received a
Franks hearing when he offered evidence that an affiant police
officer failed to disclose that he had trespassed in searching
the defendant’s trash to obtain evidence of criminal activity.
We explained that the omission was material because “[i]f the
trash investigation was conducted illegally, the facts derived
from it would have to be stricken from the affidavit,” and
without those facts, “the affidavit would not have supported a
finding of probable cause.”
Id. at 457.
In both Lull and Tate, correcting the affidavit to include
the omitted information undermined the foundational core of the
affidavit. Here, the inclusion of the omitted information does
not do that. For in this case, the corrected affidavit still
includes unchallenged information establishing probable cause.
Most critical is Agent Gray’s uncontroverted account in his
affidavit of his joint interview of John Wharton and Joeann
Wharton at the Utrecht Road house. During that interview, John
12
and Joeann Wharton stated that they lived together at the house
and had stayed continuously married for forty-three years. This
account alone easily demonstrates the requisite fair probability
that a search of the common areas of the house would reveal
evidence of John Wharton’s crimes.
Moreover, two other pieces of evidence Agent Gray provided
in his affidavit -- bills for shared cable and electric services
-- buttress that conclusion. A magistrate judge could conclude
from John Wharton’s monetary contributions to the television and
power services for the entire house that he utilized those
services. Indeed, John Wharton’s involvement with those
accounts, particularly given the fact that the BGE account was
in his name only, indicates continued interaction between John
Wharton and Joeann Wharton, at least to the degree necessary to
manage the utility accounts. These inferences further support
the view that John Wharton had access to the common areas of the
house.
To be sure, the omitted information Agent Gray learned from
his interviews with the Wharton children and grandchildren, and
documents, some of which suggested two distinct units within the
Utrecht Road house, is relevant to the question of the Whartons’
living arrangements. But, even considering those facts, the
corrected affidavit still establishes probable cause to search
all the common areas of the house.
13
Significantly, nothing in the omitted information
demonstrated, or even suggested, that John Wharton lacked access
to the common areas of the house. For example, LaSean Wharton
had told Agent Gray that his parents maintained separate
bedrooms; but LaSean never said that John Wharton remained
exclusively downstairs or did not enter the common areas. Agent
Gray’s notes lend themselves to a similar inference; to the
extent they imply a division of the house into two distinct
units, this demonstrates only that John Wharton did not have
access to Joeann Wharton’s bedroom. And while the statements of
Tasha Muriel, Chaqueira Wharton, and Essence Wharton all provide
evidence of John Wharton’s lack of access to Joeann Wharton’s
bedroom (at least to the best of their knowledge), nothing in
those statements showed that John Wharton did not have access to
the common areas of the house.
Additionally, unlike the officers in Lull and Tate, nothing
Agent Gray omitted casts doubts on the inherent validity
(whether through unreliability, illegality, etc.) of any
information in the original affidavit. Certainly the omitted
information provides more detail to the picture Agent Gray’s
affidavit painted. However, those omitted facts simply join the
facts Agent Gray proffered to form the totality of the
circumstances a magistrate judge would consider in assessing
probable cause for the corrected affidavit. And given the
14
merely relevant nature of those additional facts, their omission
does not constitute a Franks violation.
The only contemporaneous evidence in the corrected
affidavit specific to John Wharton’s access to the common areas
of the house indicates that he did have access to those areas.
And nothing Agent Gray omitted from his affidavit discredited
that conclusion. We are satisfied that, even corrected, the
affidavit provided the magistrate judge with “a substantial
basis for . . . concluding that probable cause existed” that
John Wharton would utilize public areas and leave in them
evidence of his own criminal activity. Gates, 462 U.S. at 238-
39 (alterations in original). Accordingly, the district court
properly held that the omissions were not material and so did
not defeat probable cause.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
15
