           Case: 13-10407   Date Filed: 12/09/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10407
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cr-20002-PAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

WINFRED ADDISON LEE,

                                                         Defendant-Appellant.

                       ________________________

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

                            (December 9, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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         Winfred Addison Lee appeals his convictions for possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1); possession with

intent to distribute cocaine base, marijuana, and cocaine, in violation of 21 U.S.C.

§ 841(a)(1); possession of a firearm or ammunition by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e); and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

On appeal, Lee argues that the district court made a clearly erroneous conclusion

of fact in determining whether to hold a Franks 1 hearing, leading it to improperly

deny the hearing and admit evidence discovered at his apartment pursuant to a

warrant granted by the state to search Lee’s apartment. Lee asserts that an officer

falsely stated in the warrant affidavit that the officer received a tip from an

“anonymous” source, when the officer knew that the correct term to use was

“tipster.” Lee alleges that the district court erred by not recognizing this and

granting a Franks hearing.

         A district court must grant a Franks hearing (1) when “the defendant makes

a substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit, and [(2)] if the allegedly false statement is necessary to the

finding of probable cause.” Franks, 438 U.S. at 155–56, 98 S. Ct. at 2676. If the


1
    Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674 (1978).
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court decides to hold a hearing, and the defendant establishes by a preponderance

of the evidence that there was a perjured statement in the affidavit, it must void the

warrant and exclude the fruits of the search if the remaining materials do not

establish probable cause on their own. Id. at 156, 98 S. Ct. at 2676. We review

any factual findings the court made in deciding whether to hold a Franks hearing

for clear error. See United States v. Morales, 889 F.2d 1058, 1059 (11th Cir. 1989)

(per curiam) (holding, in the context of suppression hearings, that “[a]bsent clear

error, we are bound by the district court’s findings of fact”).

      We have declined to rule on the standard of review for the denial of a Franks

hearing. United States v. Lebowitz, 676 F.3d 1000, 1010 n.1 (11th Cir. 2012) (per

curiam), cert. denied, __ U.S. __, 133 S. Ct. 1492 (2013). However, so long as the

district court’s refusal to grant the hearing survives de novo review, there is no

cause to determine whether a less-exacting standard should apply. Id. at 1010 n.1.

      We also apply the de novo standard of review when assessing “whether the

facts set forth in an affidavit constitute a sufficient basis for a finding of probable

cause.” United States v. Lopez, 649 F.3d 1222, 1245 (11th Cir. 2011). “Probable

cause exists when under the totality-of-the-circumstances there is a fair probability

that contraband or evidence of a crime will be found in a particular place.” United

States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc) (internal quotation

marks and alteration omitted).


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      Lastly, we have clear precedent that an issue is abandoned when the

appellant fails to offer argument on it. United States v. Cunningham, 161 F.3d

1343, 1344 (11th Cir. 1998). In that vein, if an appellant challenging the denial of

a Franks hearing does not allege that the false statement in the affidavit was

necessary to a finding of probable cause, he abandons the issue. United States v.

Capers, 708 F.3d 1286, 1296 (11th Cir.), cert. denied, 2013 WL 2448932 (2013).

Without a probable cause analysis in his brief, the appellant cannot obtain relief

through suppression or a Franks hearing. See id.

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

affirm.

      Lee abandoned his argument because he did not mention probable cause

anywhere in his brief. See Capers, 708 F.3d at 1296. He offered argument only on

the first prong of the Franks threshold test. See§ Franks, 438 U.S. at 155–56, 98

S. Ct. at 2676. Without argument on the second prong, we cannot grant relief.

Capers, 708 F.3d at 1296. Accordingly, Lee’s remaining argument that the district

court clearly erred by finding that the officer did not lie in the affidavit need not be

addressed. Correction of the factual error could have no impact on the outcome of

the case, as Lee abandoned any potential right to relief through reconsideration of

whether a Franks hearing and suppression were warranted. Id. Therefore, we

affirm the convictions.


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AFFIRMED.




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