United States v. Jason Millhouse

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4497
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JASON MARCELLUS MILLHOUSE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:11-cr-00201-RDB-1)
Submitted: March 25, 2013 Decided: July 19, 2013
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard Winelander, WINELANDER & COX, P.A., Baltimore, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney,
Debra L. Dwyer, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Marcellus Millhouse pled guilty to one count of
possession with intent to distribute a controlled dangerous
substance, in violation of 21 U.S.C. § 841(a)(1) (2006), and one
count of being a convicted felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006). Millhouse preserved
his right to appeal the district court’s denial of his motion
for an evidentiary hearing pursuant to Franks v. Delaware, 438
U.S. 154 (1978). Perceiving no error in that denial, we affirm.
This court reviews de novo the legal determinations
underlying a district court’s denial of a Franks hearing, and
its factual findings for clear error. United States v. Allen,
631 F.3d 164, 171 (4th Cir. 2011). A defendant bears a heavy
burden to establish the need for a Franks hearing. United
States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994). In order to
meet this burden, a defendant must make a “substantial
preliminary showing” that the affiant intentionally included
false statements necessary to a finding of probable cause.
Franks, 438 U.S. at 155-56. With a claim that the affiant made
the affidavit deceptive by omitting facts, the defendant’s
“burden increases yet more.” United States v. Tate, 524 F.3d
449, 454 (4th Cir. 2008). In such a case, the defendant must
show “that the facts were omitted ‘with the intent to make, or
in reckless disregard of whether they thereby made, the
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affidavit misleading.’” Id. (quoting United States v. Colkley,
899 F.2d 297, 300 (4th Cir. 1990)). A claim that the affiant
was negligent or made an innocent mistake is inadequate to
obtain a Franks hearing. United States v. McKenzie-Gude, 671
F.3d 452, 462 (4th Cir. 2011). The preliminary showing “‘must
be more than conclusory’ and must be accompanied by a detailed
offer of proof.” Colkley, 899 F.2d at 300 (quoting Franks, 438
U.S. at 171). In addition, consideration of the omitted
information must “be such that its inclusion in the affidavit
would defeat probable cause.” Colkley, 899 F.2d at 301.
Here, although claiming that the affiant officer made
an intentional or reckless false statement or omission in the
affidavit in support of the search warrant, Millhouse falls far
short of making a “substantial preliminary showing” that the
claimed misconduct reflected anything more than an unintentional
clerical error. Tate, 524 F.3d at 455. Furthermore, we agree
with the district court that the alleged misstatement or
omission was not essential to the probable cause determination.
See Colkley, 899 F.2d at 301. Therefore, we find that the
district court did not err in denying Millhouse’s request for a
Franks hearing.
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Accordingly, we affirm the judgment below. We grant
Millhouse’s motion to file a supplemental pro se reply brief. *
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
*
After review of Millhouse’s reply brief we find the
arguments contained therein to be without merit.
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