                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              AUG 22, 2008
                               No. 07-13399                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                      D. C. Docket No. 06-20180-CR-AJ

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

LANCE RANDOLPH UMANSKY,
a.k.a. Lance R. Umansky,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (August 22, 2008)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:

     Lance Umansky appeals his convictions for: (1) maintaining a place for the
purpose of manufacturing ecstasy, in violation of 21 U.S.C. § 856(a)(1) and (b);

(2) knowingly possessing equipment, chemicals, and materials to manufacture

ecstasy, in violation of 21 U.S.C. § 843(a)(6) and (d)(1); and (3) possession with

intent to distribute ecstasy, in violation of 21 U.S.C. § 841(a)(1). On appeal,

Umansky challenges the district court’s denial of his motion to suppress evidence,

which alleged that the affidavit offered in support of the search warrant for his

residence contained false information or omissions. Specifically, Umansky argues

that the affiant knew, or should have known, that the missing or incorrect

information could have affected the magistrate judge’s decision whether to grant a

search warrant, and thus acted recklessly in deciding what information to include.

      In order to establish probable cause, a search warrant affidavit must “state

facts sufficient to justify a conclusion that evidence or contraband will probably be

found at the premises to be searched.” United States v. Martin, 297 F.3d 1308,

1314 (11th Cir. 2002) (quotation marks and citation omitted). The Fourth

Amendment is violated if a warrant is obtained by using a false statement that was

made intentionally or recklessly. See Franks v. Delaware, 438 U.S. 154, 155-56,

98 S. Ct. 2674, 2676 (1978). Under Franks:

      [A] defendant may challenge the veracity of an affidavit in support of
      a search warrant if he makes a substantial preliminary showing that
      (1) the affiant deliberately or recklessly included false statements, or
      failed to include material information, in the affidavit; and (2) the

                                          2
      challenged statement or omission was essential to the finding of
      probable cause. If he does so, he is entitled to an evidentiary hearing
      on the issue.

United States v. Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006) (quotation marks

and citations omitted).

      Where, as here, an evidentiary hearing is conducted, the defendant bears the

burden of establishing by a preponderance of the evidence the allegations of

perjury or reckless disregard for the truth. United States v. Novaton, 271 F.3d 968,

986 (11th Cir. 2001). It can be inferred that an omission was made with a reckless

disregard for the accuracy of the affidavit “when the facts omitted from the

affidavit are clearly critical to a finding of probable cause.” Madiwale v. Savaiko,

117 F.3d 1321, 1327 (11th Cir. 1997) (quotation marks and citation omitted).

However, omissions that are merely negligent or insignificant and immaterial will

not invalidate a warrant. Id. Moreover, even if the defendant meets his burden, the

warrant is still valid “when material that is the subject of the alleged falsity or

reckless disregard is set to one side, [and] there remains sufficient content in the

warrant affidavit to support a finding of probable cause.” See Franks, 438 U.S. at

171, 98 S. Ct. at 2684.

      Upon review of the record, and consideration of the briefs of the parties, we




                                            3
find no reversible error.1 First, the hearing revealed the affiant had reasonable

justifications for his inclusion or exclusion of certain facts in the search warrant

affidavit. Second, even without the disputed content, the remaining content in the

affidavit still established probable cause. The affidavit stated, inter alia: (1)

Umansky attempted to purchase sassafras oil, which contains a chemical used to

produce ecstasy that is illegal to import without valid registration; (2) the person to

whom Umansky directed delivery of the sassafras oil stated that Umansky

purchased the oil to manufacture ecstasy; (3) Umansky had recently purchased

over thirty items (chemicals and laboratory equipment) used in manufacturing

ecstasy; and (4) Umansky’s energy usage was significantly higher than that of his

neighbors, and high power consumption is consistent with manufacturing ecstasy.

Although Umansky’s energy usage went down, the fact remains that it was still

significantly higher than his neighbors’ usage. These facts, taken together, were

sufficient to justify the conclusion that “evidence or contraband [would] probably

be found at the premises to be searched.” Martin, 297 F.3d at 1314.

       We conclude the district court’s denial of Umansky’s suppression motion


       1
         We review the district court’s determination that an affidavit established probable cause
de novo and its findings of fact for clear error. United States v. Jiminez, 224 F.3d 1243, 1248
(11th Cir. 2000). We give due weight to the inferences that the judge and law enforcement
officers drew from the facts. Id. In addition, we review for clear error the district court’s
decision that misrepresentations or omissions in an affidavit were not reckless or intentional.
United States v. Jenkins, 901 F.2d 1075, 1079 (11th Cir. 1990).

                                                 4
was proper. Accordingly, we affirm.

      AFFIRMED.




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