United States v. Filippi

14-4489-cr
United States v. Filippi
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 18th day of November, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-4489-cr
16
17 AMNON FILIPPI,
18 Defendant-Appellant.
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20
21 FOR APPELLANT: LUCAS ANDERSON (Jeremy
22 Schneider, on the brief),
23 Rothman, Schneider, Soloway &
24 Stern, LLP, New York, NY.
25
26 FOR APPELLEE: ELISHA J. KOBRE (Karl Metzner,
27 on the brief), for Preet
28 Bharara, United States Attorney
1
1 for the Southern District of New
2 York, New York, NY.
3
4 Appeal from a judgment of the United States District
5 Court for the Southern District of New York (Abrams, J.).
6
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
8 AND DECREED that the judgment of the district court be
9 AFFIRMED.
10
11 Amnon Filippi appeals from the judgment of the United
12 States District Court for the Southern District of New York
13 (Abrams, J.), convicting him (inter alia) of (i) the
14 manufacture and distribution, and possession with the intent
15 to manufacture and distribute, of one hundred or more
16 marijuana plants; and (ii) conspiracy to do so. Filippi was
17 sentenced chiefly to 60 months’ imprisonment and forfeiture
18 in the amount of $150,000. Filippi challenges the denial of
19 his motion to suppress (based on an allegedly deficient
20 search warrant), selective prosecution of the federal
21 marijuana laws, and the forfeiture order. We assume the
22 parties’ familiarity with the underlying facts, the
23 procedural history, and the issues presented for review.
24
25 1. Under Franks v. Delaware, 438 U.S. 154 (1978), a
26 defendant is entitled to a hearing to test the veracity of
27 an affiant’s statements in a warrant application if he makes
28 a “substantial preliminary showing that [i] a deliberate
29 falsehood or statement made with reckless disregard for the
30 truth was included in the warrant affidavit and [ii] the
31 statement was necessary to the judge’s finding of probable
32 cause.” United States v. Falso, 544 F.3d 110, 125 (2d Cir.
33 2008). This substantial preliminary showing “must be
34 accompanied by an offer of proof.” Id. at 126 (quoting
35 Franks, 438 U.S. at 171). “[C]redible and probative
36 evidence” must be adduced that the deficiencies in the
37 warrant application were “designed to mislead” or were “made
38 in reckless disregard of whether [they] would mislead.”
39 United States v. Rajaratnam, 719 F.3d 139, 154 (2d Cir.
40 2013) (internal quotation marks and alterations omitted).
41 Whether the deficiencies were material is determined by a
42 process of subtraction: after disregarding the allegedly
43 false statements, do the remaining portions of the affidavit
44 support probable cause to issue the warrant. United States
45 v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003). We review the
46 district court’s findings regarding the first prong for
2
1 clear error and the second prong de novo. United States v.
2 Mandell, 752 F.3d 544, 552 (2d Cir. 2014).
3
4 Filippi’s suppression motion and request for a Franks
5 hearing were properly denied. While the affiant
6 misidentified one of the individuals near the warehouse in
7 surveillance footage, Filippi has not made a “substantial
8 preliminary showing” that this was done with the intent to
9 mislead or in reckless disregard of whether it would
10 mislead. Filippi has made no “offer of proof” to support
11 his allegations of recklessness, Falso, 544 F.3d at 126, and
12 the affiant had valid, independent reasons for believing the
13 person in the surveillance footage was the individual named
14 in the affidavit.
15
16 In any event, other facts in the affidavit sufficiently
17 support probable cause. The affidavit contained
18 observations that, based on the affiant’s training and
19 experience, indicated that the warehouse was being used to
20 conduct a marijuana growing operation, and was supported by
21 evidence that the lessee of the warehouse had used a nearby
22 warehouse to operate a marijuana growing business and was
23 seeking to open another marijuana grow house. The finding
24 that the affiant did not intentionally or recklessly mislead
25 the magistrate judge was not clearly erroneous. On a de
26 novo review, we agree that any falsehood was immaterial.
27
28 2. The prosecution of Filippi did not violate his
29 constitutional rights. Because Filippi did not raise this
30 argument below, he must demonstrate plain error. United
31 States v. Edwards, 342 F.3d 168, 179 (2d Cir. 2003). This
32 he utterly fails to do. The classification of marijuana as
33 a Schedule I drug under the Controlled Substances Act is
34 constitutional; the legalization of marijuana in some states
35 for medicinal purposes does not change the continued
36 illegality of marijuana at the federal level; and the
37 exercise of discretion by federal prosecutors to charge
38 individuals with marijuana-related offenses in some states
39 but not others is consistent with the Due Process and Equal
40 Protection Clauses of the United States Constitution.
41 United States v. Canori, 737 F.3d 181, 183-85 (2d Cir.
42 2013).
43
44 3. Pursuant to the narcotics forfeiture statute,
45 Filippi must forfeit “any property constituting, or derived
46 from, any proceeds [he] obtained, directly or indirectly, as
47 the result of [his] violation.” 21 U.S.C. § 853(a)(1). The
3
1 calculation of forfeiture “is not an exact science”; so a
2 court may “use general points of reference as a starting
3 point for calculating the losses or gains from [illicit
4 activity] and may make reasonable extrapolations from the
5 evidence established by a preponderance of the evidence at
6 the sentencing proceeding.” United States v. Treacy, 639
7 F.3d 32, 48 (2d Cir. 2011). We review the district court’s
8 legal conclusions de novo and its factual findings for clear
9 error. Id. at 47.
10
11 The district court’s conclusion that Filippi must
12 forfeit $150,000 was based on trial testimony that the
13 marijuana operation yielded at least 30 pounds of high
14 quality marijuana which could be sold for at least $5000 per
15 pound at wholesale in New York City during the course of the
16 conspiracy. The district court did not commit clear err in
17 relying on this testimony to arrive at $150,000. Nor did
18 the district court clearly error in concluding Filippi
19 obtained proceeds of at least $150,000 from the sale and
20 distribution of this marijuana.
21
22 Accordingly, and finding no merit in Filippi’s other
23 arguments, we hereby AFFIRM the judgment of the district
24 court.
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
4