12-2624-cr
United States v. Mazella

                             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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York the 4th
day of June, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
            RICHARD W. GOLDBERG*
                                Judge.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,

                           -v-                                              12-2624-cr

JOSEPH MAZELLA,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:                Ephraim Savitt, Law Office of Ephraim Savitt, New York,
                                        NY.

Appearing for Appellees:                John Nowak, Assistant United States Attorney for the
                                        Eastern District of New York (Emily E. Berger, Assistant
                                        United States Attorney, Loretta E. Lynch, United States
                                        Attorney, on the brief) Brooklyn, NY.



        *
          The Honorable Richard W. Goldberg, United States Court of International Trade,
sitting by designation.
      Appeal from the United States District Court for the Eastern District of New York
(Amon, C.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-Appellant Joseph Mazella appeals from the judgment of conviction entered on
June 21, 2012 to challenge the district court’s order denying his pretrial motion to suppress
evidence and request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). The
district court found that Mazella had not demonstrated that the government deliberately or
recklessly omitted facts from the affidavit in support of the warrant and that nonetheless, the
warrant had alleged sufficient evidence for probable cause. We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.

        “It is well-established that a defendant seeking to suppress evidence that was gathered
pursuant to a search warrant that was based on inaccurate representations by the Government
must show (1) that the inaccuracies were the product of a Government agent’s ‘deliberate
falsehood’ or ‘reckless disregard for the truth’ rather than innocent mistake, and (2) that, after
setting aside the falsehoods, what remains of the warrant affidavit is insufficient to support a
finding of probable cause.” United States v. Coreas, 419 F.3d 151, 155 (2d Cir. 2005) (quoting
Franks, 438 U.S. at 171-72). In order to obtain a hearing, a defendant must make a “substantial
preliminary showing” of these two elements. United States v. Falso, 544 F.3d 110, 125 (2d Cir.
2008) (quoting Franks, 438 U.S. at 155) (internal quotation marks omitted). We review for clear
error a district court’s determination of whether officers acted deliberately or recklessly and we
review de novo whether the untainted portions of a warrant application demonstrate probable
cause. See United States v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003).

        In this case, Franks is clearly inapplicable. Mazella unsuccessfully argues that Witness
#1’s prior conviction for possession of stolen mail under 18 U.S.C. § 1708 was deliberately or
recklessly omitted from the affidavit. The affidavit does not state that Witness #1 had no
criminal record. Instead, it appears the government only neglected to include the conviction
from sixteen years ago. Where there is “no evidence whatsoever of intentional falsehood” we
conclude the first prong is satisfied. See United States v. Coreas, 419 F.3d 151, 154-55 (2d Cir.
2005). Although the government acknowledges the prior criminal act should have been included
given that crimes of fraud pertain to credibility, here defendant shows no more than an omission
by oversight or mistake, which is not enough to satisfy Franks. See United States v. Levasseur,
816 F.2d 37, 43-44 (2d Cir. 1987) (stating a failure to outline a full criminal history including
psychiatric problems did not require a hearing where there was no evidence of deliberate or
reckless disregard).

        Mazella also argues substantial other information was omitted or otherwise “skewed” in
the affidavit such as,“mischaracterizations” of the funds as loans. However, the government
points out the affidavit described Mazella’s funds as investments and not simply loans.
Appellant also claims the affidavit incorrectly described the investment properties as abandoned
or in disrepair, but concedes that one of the properties “no longer had the traffic or tenancy it had

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in better economic times.” Even assuming the affidavit’s statements are slightly exaggerated this
Court has found “[e]very statement in a warrant affidavit does not have to be true.” United
States v. Trzaska, 111 F.3d 1019, 1027 (2d Cir. 1997).

        When analyzing the second prong, a court looks at what is left to support the search. If
after setting aside the allegedly misleading statements or omissions, and “assess[ing] the
information by examining the totality of the circumstances,” United States v. Canfield, 212 F.3d
713, 718 (2d Cir. 2000) (internal citations and quotation marks omitted), the court determines
that “there remains a residue of independent and lawful information sufficient to support
probable cause,” United States v. Ferguson, 758 F.2d 843, 849 (2d Cir. 1985), then the defendant
is not entitled to a Franks hearing.

        Even if Witness #1’s criminal history from sixteen years ago was included in the
affidavit, there would still be sufficient evidence to support probable cause. Appellant argues the
investors’ statements were not reliable because their identities and the number of investors were
omitted from the affidavit. We disagree. Anonymity does not destroy the veracity of an
affidavit, especially where the sources were known and only the names and numbers of investors
were withheld. See United States v. Smith, 9 F.3d 1007, 1013 (2d. Cir. 1993) (finding “it is
certainly not fatal” when the affidavit is based on statements which the Agent “did not
personally witness”); Illinois v. Gates, 462 U.S. 213, 243-46 (1983) (finding anonymous letter,
coupled with confirming surveillance, provided adequate basis for probable cause
determination). Finally, the information about the properties was based on the Special Agent’s
first-hand observations. In light of all these facts, we affirm the district court’s decision. See
Franks, 438 U.S. at 171.

       Regardless, Mazella gives no explanation as to why the information gleaned from the
bank records, without more, did not suffice for probable cause. See Locke v. United States, 11 (7
Cranch) U.S. 339, 348 (1813) (“the term ‘probable cause,’ according to its usual acceptation,
means less than evidence which would justify condemnation” and instead means enough to raise
“suspicion”). Mazella admits the accounts have “generally . . . decreased over time” and that a
“number of checks drawn” have bounced. Mazella also concedes the bank statements correctly
showed an investor paid $72,000 “in connection with a real estate investment” and none of that
payment was used for investment purposes but instead was given to existing investors and
Mazella and his family. This evidence alone gave enough reason for “suspicion.” We agree
with the district court’s conclusion that there was a substantial basis for the issuing judge to find
probable cause.

      We have considered Mazella’s remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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