Case: 12-30246       Document: 00512271092         Page: 1     Date Filed: 06/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 12, 2013
                                     No. 12-30246
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TERRY TERREAL HOLMES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:10-CR-224-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       A jury convicted Terry Terreal Holmes of conspiracy to possess with intent
to distribute cocaine, cocaine base, and marijuana; maintaining a drug-involved
premises; possession with intent to distribute cocaine base; possession with
intent to distribute marijuana; and possession of a firearm after a felony
conviction. See 21 U.S.C. §§ 841(a)(1), 846, 856(a)(2); 18 U.S.C. § 922(g)(1). The
district court sentenced Holmes to a cumulative prison term of 188 months.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30246

      Holmes challenges the district court’s decision to deny his suppression
motion without a hearing. He contends that he made a substantial preliminary
showing of entitlement to a hearing because he showed that a police officer’s
identical affidavits used to obtain search warrants for adjacent premises
included inaccuracies and omissions that raise an inference that the affidavits
were entirely fabricated.     According to Holmes, the warrants rested on
intentionally falsified information.
      The prosecution’s evidence will be suppressed and excluded from
consideration “where a Fourth Amendment violation has been substantial and
deliberate.”   Franks v. Delaware, 

, 171 (1978).         An affidavit
supporting a warrant carries a presumption of validity. Id.; United States v.
Gunn, 

(5th Cir. 1995). Nevertheless, a defendant challenging that
presumption is entitled to an evidentiary hearing if he makes a substantial
preliminary showing that a false statement was knowingly and intentionally, or
with reckless disregard for the truth, included by the affiant in a warrant
affidavit, provided that the allegedly false statement is necessary to the finding
of probable cause. 

; United States v. El-Mezain, 

, 570 (5th Cir. 2011).
      “We review for clear error the district court’s finding that an affiant’s
statements were not deliberately false or not made with reckless disregard for
the truth.” United States v. Thomas, 

, 159 (5th Cir. 2010). “We
review de novo the district court’s conclusions of law, which include the decision
to deny an evidentiary hearing under Franks.” 

the following representations made to the judge who
issued the search warrants were false or misleading and consequently called
each affidavit into question as a complete fabrication: the affidavits mentioned
a light on his porch, but there is no light fixture there; the affidavits mentioned
that an informant saw a safe in his residence, but no safe was found when the
warrant was executed; the affidavits stated that the utilities for the laundry

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                                  No. 12-30246

business were in his name, but in fact the registration was in the name of his
business; and the police officer intentionally misled the judge by not revealing
that prior arrest warrants for Holmes for cocaine distribution concerned conduct
occurring two years earlier.
      “An unsupported assertion that an affidavit contains a misstatement (or
an omission) does not give rise to the inference that the affiant acted with
reckless disregard for the accuracy of the information presented to the
magistrate.” United States v. Runyan, 

, 234 n.6 (5th Cir. 2002); see
also United States v. Mueller, 

, 341-42 (5th Cir. 1990). Moreover,
our review of the affidavits and of the entire record compels the conclusion that
Holmes fails to establish even an inference of deliberate or reckless falsity.
Holmes’s contentions concerning the utilities statements and the prior arrest
warrants are nothing “more than conclusory.”           

.
Holmes’s contentions concerning the bedroom safe are refuted by the record,
which shows that police did find a safe in the residence.           And Holmes’s
contention concerning the porch light is unpersuasive, given that the district
court had a clarifying affidavit before it when it ruled that a Franks hearing was
unnecessary. Thus, we reject Holmes’s invitation to conclude that the police
officer’s affidavits were made from whole cloth.
      Because we do not disturb the district court’s decision to deny the
suppression motion without a hearing, Holmes’s conviction is AFFIRMED.




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