                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 22, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

 v.                                                      No. 05-4268
                                                           (D. Utah)
 ARA SH ALEX ANDER ZA RIF,                      (D.C. No. 2:05-CR-00117-PGC)

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before BRISCO E and HA RTZ, Circuit Judges, and KR IEGER , District Judge **


      In this appeal, Arash Alexander Zarif challenges the trial court’s denial of

his request for a Franks hearing and its finding that sufficient probable cause

existed to support a search warrant executed at Zarif’s residence. He contends

that he identified several false statements in the warrant affidavit that constituted

either deliberate falsehoods or which were made with a reckless disregard for the

truth, and that, when stripped of the false statements, the warrant affidavit fails to

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
          The Honorable M arcia S. Krieger, United States District Judge for the
District of Colorado, sitting by designation.
establish sufficient probable cause to permit a search of his residence. W e

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                      I. Facts

      On or about February 17, 2005, Draper City Police Detective K. Cole

signed an affidavit for a search warrant, asserting that he believed that, on or

about February 6, 2005, Zarif had transported two minor females to his house for

the purpose of engaging in prostitution. Cole’s affidavit stated that it was based

primarily on interviews conducted with the two minors, who were identified as

V1 and V2. The following facts are taken from the affidavit. Except as

specifically noted herein, Zarif does not dispute the veracity of the statements in

the affidavit.

      The affidavit stated that both minors had positively identified Zarif from

his driver’s license photo placed in a photo lineup. Zarif contends that this

statement is false, insofar as V2's recorded interview with Cole reveals that she

stated that the photo of Zarif “looks kind of like Alex, but I don’t think it’s him.”

      The affidavit went on to state that on January 22, 2005, V2, having

previously been introduced to Zarif by a friend, went to Zarif’s home and had

sexual intercourse with him. On February 6, 2005, V2 called V1, and both girls

were picked up by Zarif in his car. The affidavit states that V1 identified certain

details of Zarif’s car. As they were driving, V1 asked Zarif how he made enough

money to be able to afford the car. Both V1 and V2 told Cole that Zarif

                                         -2-
responded by saying that he “sold shoes.” However, in V2's recorded interview

with Cole, she had stated that Zarif had said he was a “middleman” for a shoe

company.

      The affidavit further states, according to V1, Zarif then stated that he

owned a “brothel,” or, according to V2, that he ran an “escort service.” The

minors asked how much money the “girls” made working for him, and were told

that they earned between $300 and $500 for sexual intercourse, and $50 for

performing oral sex. Zarif inquired as to whether the minors w ere interested in

making some money that night. V2 immediately agreed, but V1 hesitated. Zarif

then began calling unknown persons on his cell phone to arrange a liaison at his

house. The affidavit states that V2 “believes the phone numbers for the people

[Zarif] called were recorded in his cell phone because he looked their number up

in the phone.” Zarif contends that V2's recorded interview does not indicate that

V2 ever voiced such a belief or asserts that she saw Zarif look the numbers up in

his phone.

      Zarif pulled the car into a garage located on the bottom level of a residence.

The affidavit recites V1's identification of the layout of the residence, including

the furnishings of the main level, and the location of a bathroom and bedroom on

higher floors. Zarif contends here that “Both minors did not describe the

residence in great detail.” O nce inside, Zarif again asked if the minors w anted to

make some money by performing oral sex, and both minors agreed. Zarif sent the

                                          -3-
minors to the bathroom to “get ready.” Three males then arrived, described by

both minors as being a “Native American-Indian,” a “M exican,” and a “white

guy.” Zarif brought the “Indian” and the “M exican” to the bathroom, and told the

minors to begin. V1 insisted that the men use a condom, and the men put on

condoms. V2 stated that neither man used condoms at any time. V1 began

performing oral sex on the “Indian,” and V2 performed oral sex on the

“M exican.” After five minutes, they switched partners. V1 states that she waited

until the “M exican” procured another condom before she would perform oral sex

on him. Both minors state that V2 finished first, and left the bathroom, and that

V1 finished about five minutes later. Zarif alleges that the affidavit fails to

disclose the fact that V1 gave Cole inconsistent stories regarding the acts she

performed, namely, that although she told Cole in the interview that she

performed oral sex, in a prior written statement, she had stated that she gave a

“hand job.”

      The affidavit states that according to V1, after she finished and went

downstairs, V2 went back to the bathroom with the “white guy” and, V1 believes

that V2 performed oral sex on him. The affidavit notes that V2 “stated the exact

opposite” – that V1 went upstairs with the “white guy” and performed oral sex on

him. The affidavit also states that “V1 admitted to giving her mother $100.00 the

next day. V1's mother confirmed that V1 gave her $100.00.” Zarif contends that

this last statement is misleading, implying that the $100 corroborated the claim

                                          -4-
that V 1 received the money for performing the acts described. However, V1

stated in her interview that the money she gave her mother came from performing

construction work, a fact not disclosed in the affidavit.

      The affidavit then states that, according to V2, after they had all finished,

they went to the kitchen area and began drinking vodka out of a bottle. The three

males left, and Zarif then stated that he wanted to “hot tub.” Both minors went

upstairs to the bedroom where a tub was apparently located, got undressed, 1 and

got into the tub. The minors began “making out,” when Zarif came in and began

recording them with what Cole believed was a digital movie camera. Zarif

contends that the allegation that the minors were “making out” in the tub

w rongfully implies that they w ere engaged in a “lewd and lascivious” act. He

states that both minors stated to Cole that they viewed the footage that Zarif had

recorded and stated that they looked “silly,” that it did not “look real,” and that

they were “giggling.” Zarif contends that omission of the minors’

characterizations of what they saw on the recorded footage renders this portion of

the affidavit misleading.

      V2 states that, after they were done in the tub, both got out, dried off, and

got dressed. They asked Zarif if they could watch the footage he had recorded.



      1
          The affidavit notes a discrepancy in the minors’ statements on this point.
It states that V1 claims that she kept her sports bra on and took off her pants and
put on a pair of green or blue shorts belonging to Zarif, and that V 2 was naked.
V2 stated that both she and V1 were naked in the tub.

                                          -5-
V1 stated that, when the recording began to play, she saw “young girls, maybe

only 14 years old, performing sex acts.” V2 stated that the girl she saw on the

recording was “one of [Zarif’s] old girlfriends.” Zarif contends that this

juxtaposition of the two minors’ statements in the affidavit implies that the girl

identified by V2 is the same person seen by V1 “performing sex acts.” In

actuality, Zarif contends, V2 stated that the person she saw on the tape was fully

clothed, sitting and talking with Zarif, and that the affidavit is misleading in

implying that the two minors are describing the same scene.

      The affidavit then repeats that both minors were shown a six-photo array,

and that both picked out Zarif’s photo. As stated previously, Zarif contends that

this statement is false with regard to V2, who stated that the photo “looked like

Alex” but that she did not think it was him.

      The affidavit then recites certain information conveyed to Cole by Draper

City Police Officers. On February 9, 2005, those officers were asked to assist

with locating a runaw ay juvenile – V2 – who was believed to have been at Zarif’s

residence. The officers arrived and spoke with Zarif, who stated that he knew V2,

but stated that he had not seen her in “several days,” which he later refined to

“several weeks.” Zarif permitted the officers to search the residence for V2, but

she was not found. On February 11, 2005, Cole spoke with the officers who had

conducted the search, and the officers described the layout and contents of the

residence in a manner that matched the description of the premises given by V1,

                                          -6-
and also reported seeing dark blue or green shorts that matched a description

given by V1. Zarif contends that this portion of the affidavit misleadingly omits

to mention that Officer Carpenter 2 of the Draper City Police Department searched

Zarif’s residence on February 10, 2005, specifically looking for a video camera,

but did not find one.

      Zarif also contends that Cole’s failure to state in the affidavit that the

minors did not report the events to police until after their parents had learned of

the events was both material and intentional or reckless.

      Based on the foregoing, Cole sought a search warrant permitting the search

of Zarif’s residence and the specific authorization to search for and seize Zarif’s

cell phone; any used condoms; a bottle of vodka; hair, fibers, and fingerprints in

the home and Zafir’s car; and the camera, among other things. On February 17,

2005, the M agistrate Judge issued the w arrant requested by Cole. The record

does not reveal when the warrant was executed, or what evidence was seized

pursuant to it.

      Zarif was subsequently indicted, and on April 7, 2005, a Second

Superseding Indictment was returned, charging Zarif with three counts of enticing

a minor to engage in sexually explicit conduct for the purpose of producing visual

      2
         Officer Carpenter is not one of the two Draper City Police Officers
mentioned in the affidavit as having searched Zarif’s residence on February 9,
2005. Thus, it appears that a second search of the residence occurred on February
10, 2005. No mention of this second search or its circumstances is made in the
affidavit.

                                         -7-
depictions of such conduct; one count of possession of child pornography; two

counts of enticing a minor to engage in prostitution; one count of possession of a

firearm by a prohibited person; and one count of possession of methamphetamine.

                   II. M otion to suppress / for Franks hearing

      Zarif moved to suppress 3 the evidence seized pursuant to the warrant on the

grounds that the warrant was obtained by means of an affidavit containing

material misrepresentations. On April 12, 2005, the trial court denied the motion

in a written order, without having conducted a Franks hearing. The court found

that although certain representations contained in the warrant affidavit were either

know ingly or recklessly misleading, 4 the affidavit, stripped of those


      3
         The motion is not included in the record, and is not immediately apparent
from a review of the trial court’s docket. The docket does reflect two motions
filed on M arch 25, 2005, one to “suppress guns and drugs not listed in the search
warrant” (# 37) and one “for Evidentiary Hearing re: Sixth Amendment violation”
(# 38). Our description of the motion is taken from the trial court’s order denying
it.
      4
         Specifically, the trial court found that the assertion that V2 positively
identified Zarif’s photo was false and the court assumed, without necessarily
finding, that the falsehood was reckless; that the description of both minors
stating that Zarif claimed to sell shoes was neither false nor intentionally or
recklessly misleading; that the description of V2 as stating that Zarif looked up
numbers in his cell phone was not materially false, and that any untruthfulness by
Cole in representing V2's statement on this point would have been negligent, but
not intentional or reckless; that the implication that the $100 V1 gave to her
mother came from Zarif for performing oral sex was misleading, and was made
with reckless disregard; that the representations as to the minors “making out” in
the tub was not false; that the implication that the girl seen by V1 in the recording
performing sexual acts was the same girl identified by V2 as one of Zarif’s
girlfriends was misleading, and was intentional or made with reckless disregard;
that the omission of Officer Carpenter’s failure to find the camera was not

                                          -8-
representations, still demonstrated sufficient probable cause for the issuance of

the warrant. Specifically, the trial court disregarded the assertion that V2 had

positively identified Zarif in the photo lineup, disregarded the assertion that V1

had given her mother $100 the follow ing day, and considered that the minors’

characterizations of what they saw on the recording when it was played back to be

contradictory. Nevertheless, “even with these falsehoods and omissions

redacted,” the trial court found that the affidavit had “abundant information for a

finding of probable cause.” In particular, the trial court noted the undisputed fact

that V1 had positively identified Zarif in a photo lineup; the undisputed facts

regarding Zarif telling the minors that he operated something akin to an escort

service and that he asked them if they wanted to earn money that night by

performing oral sex; the fact that V1 described the interior of Zarif’s home in a

manner that was corroborated by the Draper City Police Officers; the undisputed

fact that Zarif introduced the minors to three men, told them to “act

professionally,” and that the minors performed oral sex on the men; and the

undisputed fact that the Zarif filmed the two minors – at least one of whom was

naked – “making out” in a hot tub.




misleading; that the omission of V1's prior statement that she performed a “hand
job,” not oral sex, was not misleading; and that the omission of the fact that the
minors did not report the events until after their parents had learned of them w as
not misleading.

                                         -9-
      The charges against Zarif were tried in a bench trial on M ay 2, 2005. Zarif

was convicted on three counts of enticing a minor to engage in sexually explicit

conduct for the purpose of producing visual depictions of such conduct, 18 U.S.C.

§ 2251. He was sentenced to fifteen years’ incarceration. This appeal followed.

                                   III. Discussion

      On appeal, Zarif contends that the alleged misrepresentations and omissions

discussed above were intentional or reckless. Although not expressly stated or

argued, it appears that Zarif appeals those findings by the trial court that certain

alleged misrepresentations or omissions w ere either not false or materially

misleading, or were not intentional or reckless. Zarif further argues that, when

stripped of the offending information, the affidavit does not demonstrate probable

cause because it does not supply information demonstrating the veracity of the

informants.

      In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the Supreme Court

held that in limited circumstances, a defendant is entitled to an evidentiary

hearing to determine whether a warrant was issued in reliance on a deliberately or

recklessly false affidavit. To be entitled to a Franks hearing, a defendant must

make a substantial showing that the warrant affiant made a false statement or

omitted material information from the affidavit, and that the misrepresentation or

omission was made knowingly or w ith reckless disregard for the truth. Franks,

438 U.S. at 155-56; United States v. Artez, 389 F.3d 1106, 1116 (10 th Cir. 2004).

                                         -10-
In addition, the defendant must show that the misrepresentation or omission was

necessary to the finding of probable cause. Franks, 438 U.S. at 156. In other

words, if, after the allegedly false material is set aside or the omitted material

excluded, there remains sufficient content in the affidavit to support a finding of

probable cause, no hearing is required. Franks, 438 U.S. at 171-72. W hether an

affidavit demonstrates sufficient probable cause to support a warrant is a question

of law that w e review de novo. U.S. v. Gonzales, 399 F.3d 1225, 1228 (10 th Cir.

2005).

         Zarif’s first argument on appeal appears to be that the trial court erred in

finding that certain alleged misrepresentations or omissions were either not

misleading or were not made with intent or reckless disregard. W e need not reach

the question of w hether the trial court’s findings as to the truth or falsity of these

allegations are correct because we find that, even if all of the assertions

challenged by Zarif were stricken from the affidavit (and all of the allegedly

improperly omitted material included), there would still be probable cause for the

issuance of a warrant. Zarif does not dispute, for example, allegations in the

warrant that he encouraged and facilitated the minors’ performing oral sex for

money, or allegations that he videotaped the minors – at least one of whom was

naked – engaging in simulated intimacies. These unchallenged allegations supply

sufficient probable cause for the warrant that was issued even in the absence of

the challenged allegations. Thus, we find that the trial court was correct in

                                           -11-
concluding that Zarif failed to make the preliminary showing necessary to entitle

him to a Franks hearing.

      Zarif’s second argument is that, once the three statements found by the trial

court to be intentionally or recklessly misleading are omitted, the affidavit fails to

demonstrate sufficient probable cause for issuance of a warrant because the

affidavit fails to articulate facts demonstrating the veracity of V1 and V2.

W hether a warrant application founded upon an informant’s allegations of

criminal conduct demonstrates sufficient probable cause is a “practical, common-

sense decision,” to be made by a magistrate judge in consideration of the totality

of the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983). Among the

factors that must inform this decision are facts in the warrant demonstrating the

informant’s reliability, veracity, and basis of knowledge. Id. The Supreme Court

in Gates refused to lay down a rigid rule for how much detail a warrant

application must provide about the informant, observing that a deficiency in one

factor may be balanced out by the excess in another. Id. at 233-34. Indeed, even

anonymous tips, when supplemented by independent police investigation, may be

sufficient despite the absence of any indication of the anonymous informant’s

veracity, reliability, or basis of knowledge. Id. at 237-38.

      There is no indication in the record that Zarif raised this specific issue

below. Even assuming he had, however, we find that the affidavit contains

sufficient allegations from which the magistrate judge could have concluded that

                                         -12-
V1 and V2 were sufficiently reliable w itnesses. First, although they occasionally

differed in some respects, the two minors’ statements corroborated each other,

both in general and in many areas of specific detail. 5 Second, V1 and V2 gave

detailed descriptions of the alleged wrongdoing, in which they admitted

personally participating. See Gates, 462 U.S. at 234 (“even if we entertain some

doubt as to an informant's motives, his explicit and detailed description of alleged

wrongdoing, along with a statement that the event was observed first-hand,

entitles his tip to greater w eight than might otherw ise be the case”). Third, a

handful of the facts asserted by V1 and V2 are shown by the affidavit to have

been independently corroborated, namely, V1's description of the layout and

contents of Zarif’s residence and the appearance of his car; Zarif’s

acknowledgement to the Draper City Police Officers that he knew V2 and had

seen her “several days” earlier; and the officers’ observation of dark blue or green

shorts, matching those described by V1, in Zarif’s house. Looking at the totality

of the contents of the affidavit, and mindful of the great deference that a

review ing court should pay to the magistrate judge’s determination of probable

cause, Gates, 462 U.S. at 236, we cannot say that the affidavit was so devoid of

      5
        The fact that the minors’ statements sometimes differed on material
points does not defeat the corroborative value of their statements. Such
inconsistencies are simply one of the circumstances that the magistrate judge
would consider in evaluating the sufficiency of the showing of probable cause.
Likewise, the possibility that the statements corroborated each other because the
minors may have jointly fabricated their stories was another circumstance for the
magistrate judge to consider.

                                         -13-
facts demonstrating the reliability and veracity of V1 and V2 that the magistrate

judge’s finding of probable cause lacked any substantial basis.

                                  IV. Conclusion

      The trial court’s denial of the motion to suppress is AFFIRM ED.



                                                    Entered for the Court


                                                    M arcia S. Krieger
                                                    District Judge




                                        -14-
