     Case: 10-20261     Document: 00511268901          Page: 1    Date Filed: 10/20/2010




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

                                                 FILED
                                                                          October 20, 2010
                                     No. 10-20261
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KEITH NATHAN SYMMANK,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-59-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Keith Nathan Symmank pleaded guilty to one count of possession of child
pornography and was sentenced to 78 months of imprisonment. See 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2). His plea was in accordance with a plea agreement
in which he reserved the right to appeal the denial of his motion to suppress
evidence seized at his residence and the district court’s failure to conduct an
evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-20261    Document: 00511268901 Page: 2       Date Filed: 10/20/2010
                                 No. 10-20261

      A search warrant had issued on the affidavit of Gilbert Mendoza, a special
agent under Texas law and a U.S. Immigration and Customs Enforcement (ICE)
investigator.   Mendoza attested that ICE investigators, working with law
enforcement in the United Kingdom, had identified Symmank as someone who
frequently visited a website that was aimed at individuals having a sexual
interest in children. Mendoza attested that Symmank posted messages on the
website 639 times and made sexual comments about images posted by others.
Further, Mendoza stated that he had viewed log files of text postings by
Symmank in which Symmank discussed “websites known to offer images of
children posing in a lewd and lascivious manner.” According to Mendoza, among
the images and texts posted by Symmank were “multiple images of prepubescent
female children clothed in panties, bikini’s [sic] or shorts posing in a lewd
manner with the camera focusing primarily on the genital area of the victims.”
Mendoza provided more detailed descriptions “of a sampling of the images,”
namely photographs marked as image # 1, image # 2, and image # 4. Mendoza
attested that a prepubescent girl’s right nipple is exposed in image # 1 and that
her left nipple is exposed in image # 2. Mendoza attested also that image # 4
depicted a pubescent girl wearing a string bikini that exposed her buttocks. The
photographs themselves were not shown to the issuing magistrate, but they were
filed under seal in the district court in connection with the motion to suppress.
The district court denied the suppression motion without a hearing and without
entering findings of fact.
      Symmank contends first that the search of his residence was illegal
because neither the particular images described in Mendoza’s affidavit nor the
remainder of the affidavit constituted evidence of criminal activity sufficient to
support a warrant. Second, Symmank contends that a Franks hearing was
required because he had properly challenged Mendoza’s affidavit and the
challenge was accompanied by what he deemed an offer of proof, i.e., his
counsel’s affidavit. In that affidavit, counsel stated that neither image # 1 nor

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image # 2 shows a nipple; instead, he states, each shows “what appears to be the
edge of [a nipple’s] areola.” Counsel also opined that the bikini in image #4 was
not a string bikini. Third, Symmank contends that the good faith exception to
the exclusionary rule was inapplicable because there could be no reasonable
reliance on Mendoza’s affidavit because of its alleged falsehoods.
      When reviewing the denial of a motion to suppress, we review factual
findings for clear error, and we review de novo the trial court’s conclusions as to
the sufficiency of a warrant and the reasonableness of a police officer’s reliance
on a warrant. United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999).
Because “the district court entered no factual findings and indicated no legal
theory underlying its decision [not to suppress] the evidence obtained in
the . . . search, [we] must independently review the record.” United States v.
Yeagin, 927 F.2d 798, 800 (5th Cir. 1991). A district court’s ruling to deny a
suppression motion should be upheld “if there is any reasonable view of the
evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th Cir.
1994) (en banc) (internal quotation marks and citation omitted). The “more
searching review” undertaken if there are no district court factual findings is
“guided by [any] testimony [or] other evidence adduced at the suppression
hearing.” United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998). Although
there was no testimony offered at a suppression hearing in the present case, the
affidavit and the exhibits filed in the district court constitute part of the
appellate record. See F ED. R. A PP. P. 10(a)(1).
      The motion to suppress should be granted “where a Fourth Amendment
violation has been substantial and deliberate.” Franks, 438 U.S. at 171. One
exception to the exclusionary rule provides that “evidence obtained by officers
in objectively reasonable good-faith reliance upon a search warrant is
admissible, even though the affidavit on which the warrant was based was
insufficient to establish probable cause.” United States v. Satterwhite, 980 F.2d
317, 320 (5th Cir. 1992). However, the good faith exception is inapplicable if, for

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instance, the issuing judge was misled by information in an affidavit that the
affiant knew or should have known was false except for his reckless disregard
of the truth. Symmank contends Mendoza’s affidavit falls in this category,
rendering the good faith exception inapplicable. See United States v. Mays, 466
F.3d 335, 343 (5th Cir. 2006).1
         An affidavit supporting a warrant carries a presumption of validity.
Franks, 438 U.S. at 171.               Nevertheless, a defendant challenging that
presumption is entitled to an evidentiary hearing if he makes a substantial
preliminary showing that a statement material to the probable cause finding in
a warrant affidavit was knowingly and intentionally false, or was made with
reckless disregard for the truth. Id. at 155-56. A “challenger’s attack must
[include] allegations of deliberate falsehood or of reckless disregard for the truth,
and those allegations must be accompanied by an offer of proof.” Id. at 171. It
is insufficient that an affidavit was made negligently or through innocent error.
Id.
         There is no merit to Symmank’s contention that the judge who issued the
warrant was misled by information in the affidavit that Mendoza knew or should
have known to be false.            Symmank’s counsel’s affidavit interpreting and
describing three photographs that were described differently by Mendoza does
not satisfy Symmank’s burden of presenting a challenge that is “more than
conclusory.” Franks, 438 U.S. at 171. The actual pictures filed in the district
court under seal show that Mendoza’s description of #1 and #2 is substantially
correct, and his characterization of #4 is debatable.                   Even if we accepted
Symmank’s counsel’s view of the pictures, showing that Mendoza’s view might


        1
          Another exception to the good faith exception occurs where the underlying affidavit
is “bare bones,” i.e., “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Id. (internal quotation marks and citation omitted).
Although Symmank alludes to the bare-bones exception, he has abandoned the issue by not
briefing it. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).

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be the mistaken one is not equivalent to showing that it was the product of a
deliberate falsehood or a reckless disregard for the truth. See Franks, 438 U.S.
at 171. Thus, Symmank has failed to show that he was entitled to a hearing to
present evidence on the issue. See id. at 171-72. Additionally, he has failed to
show that the good faith exception to the exclusionary rule was inapplicable in
his case. See Satterwhite, 980 F.2d at 320. Because the good faith exception
applies, we do not consider whether the affidavit in support of the warrant to
search Symmank’s residence presented sufficient evidence to establish probable
cause. See Cherna, 84 F.3d at 407.
      We find no reversible error in the district court’s refusal to hold a Franks
hearing or suppress the evidence. Symmank’s conviction and sentence are
AFFIRMED.




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