                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          AUG 7 2001
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-4158
                                                 (D.C. No. 99-CR-03-01-W)
 GARY LAMONTE WHITAKER,                                  (D. Utah)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before SEYMOUR, ANDERSON, and KELLY, Circuit Judges.


       Mr. Whitaker appeals from the district court’s decision not to hold an

evidentiary hearing to determine the validity of a search warrant. We have

jurisdiction under 28 U.S.C. § 1291, and affirm. 1




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       1
        Following a partial remand by this court, the district court granted Mr.
Whitaker’s motion for extension of time in which to file a notice of appeal. I
Supp. R. doc. 164. We reserved judgment on the timeliness of this appeal.
United States v. Whitaker, Order, No. 00-4158 (10th Cir. filed Jan. 25, 2001).
We now hold that Mr. Whitaker’s notice of appeal was timely, see Hinton v. City
of Elwood, 997 F.2d 774, 778 (10th Cir. 1993), and proceed to the merits.
                                     Background

      Mr. Whitaker, along with co-defendant Tracy Tooker, was charged with

bank extortion and aiding and abetting after attempting to extort money from two

banks in Ogden, Utah. I R. doc. 13. Mr. Tooker was arrested shortly after the

second attempted extortion, IV R. at 18, 48-49, and confessed his involvement. I

R. doc. 93, ex. 2, at 8. Mr. Whitaker was then arrested. IV R. at 19, 49.

Pursuant to a warrant issued by a state magistrate judge, FBI agents searched Mr.

Whitaker’s apartment. 2 Id. at 51.

      The warrant affidavit included a statement by Mr. Tooker after his arrest.

Mr. Tooker’s initial statement corroborated much of what FBI agents had

observed immediately after the attempted extortions. I R. doc. 93, ex. 2. In

addition, Mr. Tooker stated that Mr. Whitaker had recruited him to assist in the

extortions. Id. at 8.

      Mr. Whitaker filed a motion to suppress, which was referred to a magistrate

judge. Mr. Whitaker argued that the search warrant was deficient because the

warrant affidavit “neglected to reference . . . 1. Tooker’s limited mental



      2
         In the apartment, agents found computer equipment, IV R. at 54, and an
extortion note addressed to a Nevada casino next to a computer in the living
room. Id. at 59. Agents also found, among other things, tractor-feed computer
paper with perforated edges, id. at 66, and duct tape. Id. at 67. The agents seized
“a computer with a hard drive and data storage disks,” which were the object of
Mr. Whitaker’s motion to suppress. I R. doc. 88, at 1.

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capabilities; 2. The stressful nature of Tooker’s interrogation; 3. The

inconsistencies of Tooker’s confession; and 4. Tooker’s recantation of his

confession.” I R. doc. 99, at 3; see also id. doc. 88, at 4. Specifically, Mr.

Whitaker alleged that Mr. Tooker was illiterate and had only a seventh-grade

education, id. doc. 88, at 1, and was distraught (and even cried) during the

interrogation. Id. at 2. He also alleged that Mr. Tooker made several inconsistent

statements regarding the second extortion attempt. Id. Mr. Tooker said that his

accomplice was named “Beckstead,” that he was to pick up a brown bag (as

opposed to a envelope), and that he was to pick up the money from between

barricades (as opposed to the fourth break in a retaining wall). Id. Finally, after

confessing and speaking with his girlfriend by telephone, Mr. Tooker recanted,

claiming that he had told the agents what they wanted to hear so that he could

make the telephone call. Id. Mr. Whitaker requested a hearing under Franks v.

Delaware, 438 U.S. 154 (1978). Id. doc. 87.

      The federal magistrate judge denied Mr. Whitaker’s request for a Franks

hearing, II R. at 18, and recommended that his motion to suppress be denied. I R.

doc. 99, at 11. Exercising de novo review, 28 U.S.C. § 636(b)(1), the district

court affirmed the magistrate judge’s denial of the motion, concluding that “even

if the omitted information had been included, the search warrant would still have

established probable cause to search defendant Whitaker’s house and truck.”


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Aplt. Br. att. B, at 2. Mr. Whitaker was convicted of two counts of bank

extortion and aiding and abetting, in violation of 18 U.S.C. §§ 2, 2113(a). I R.

doc. 147, at 1. On appeal, Mr. Whitaker argues that the district court erred in

refusing to conduct an evidentiary hearing. Aplt. Br. at 6.



                                       Discussion

      If the defendant “makes a substantial preliminary showing” that a warrant

affidavit contains an intentional or reckless false statement, the Fourth

Amendment requires a hearing if the “allegedly false statement is necessary to the

finding of probable cause . . . .” Franks, 438 U.S. at 155-56; see also United

States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997). Where material

information has been omitted from the affidavit, a hearing is required if a

reasonable magistrate judge would not have issued the warrant had the affidavit

included the omitted information. Kennedy, 131 F.3d at 1375.

      “We review de novo a district court’s determination of reasonableness [of a

warrant] under the Fourth Amendment,” and ask “ whether the issuing magistrate

. . . had a substantial basis for finding probable cause . . . .” Id. at 1376 (citation

and internal quotations omitted). We give “great deference” to that decision. Id.

Probable cause exists if, “given all the facts and circumstances set forth in the

affidavit before [the state magistrate judge], including the veracity and basis of


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knowledge of persons supplying hearsay information, there is a fair probability

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

1378 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal quotations

omitted); see also United States v. Cook, 949 F.2d 289, 292 (10th Cir. 1991). The

state magistrate judge need only have a “substantial basis for . . . conclud[ing]

that a search would uncover evidence of wrongdoing.” Kennedy, 131 F.3d at

1378 (quoting Gates, 462 U.S. at 236) (internal quotations omitted) (alterations in

original).

      In addition to Mr. Tooker’s statement, the warrant affidavit recited the

following. On January 7, a Bank of Utah branch received a call from a pay phone

just north of the bank. I R. doc. 93, ex. 2, at 3. The caller was male. The caller

told the bank that there was a note taped to a dumpster located behind the bank.

The note was typed on tractor-feed computer paper (with perforated edges) and

attached to the dumpster with duct tape. Id. at 4. The branch manager was

instructed to take $4,750 by bus to a particular location, where the manager would

be given further instructions. Id. at 3. The note stated if the demand was not met,

an eight-year-old girl would be kidnaped and killed. Id. at 3-4. Approximately

fifteen minutes after the call, officers observed Mr. Tooker in a parking lot west

of the bank. Id. at 4-5. Mr. Tooker was watching the bank and then drove his

truck south in the parking lot to a grocery store. Id. at 4. Fifteen minutes later,


                                         -5-
Mr. Whitaker was observed in the same parking lot in his truck. Id. at 5. He was

also watching the bank. Mr. Tooker made a gesture to Mr. Whitaker. Mr.

Whitaker remained for approximately a half hour, and then returned to his

apartment.

      The next day, an Ogden police officer visited Mr. Whitaker’s apartment to

follow up on previous noise complaints. Mr. Whitaker wrote his telephone

number on a piece of tractor-feed computer paper with perforated edges and gave

it to the officer. The officer observed a computer and printer in Mr. Whitaker’s

apartment.

      On January 14, a note was discovered on the front door of a First Security

Bank branch. The note was attached with duct tape and “instructed the manager

to deliver $10,000 to a location just north of the bank.” Approximately twenty-

five minutes after the note was discovered, Mr. Whitaker was observed in his

truck in a parking lot west of the bank. Id. at 7. Mr. Whitaker then proceeded

north approximately 100 yards, stopped, and opened the hood of his truck. Five

minutes later, Mr. Whitaker drove to the parking lot where the manager was

instructed to leave the money. Mr. Whitaker then returned to his apartment.

      The bank manager and an FBI agent then left a package in the parking lot

where the manager had been instructed to leave the money. Shortly thereafter,

Mr. Tooker drove to the parking lot and was arrested. Id. at 7-8. Mr. Whitaker


                                       -6-
was then arrested. Id. at 9. The arresting agents did a protective sweep of Mr.

Whitaker’s apartment and observed a computer and two printers.

      It is readily apparent that there was enough evidence, independent of Mr.

Tooker’s statement, to support a finding of probable cause. Even if the affidavit

had disclosed the omitted information, a reasonable state magistrate judge would

have still issued the warrant. We therefore affirm the district court’s decision not

to hold a Franks hearing.

      In so holding, we reject Mr. Whitaker’s argument that the district court

relied upon the magistrate judge’s incorrect statement of the applicable law.

Aplt. Br. at 8; Aplt. Reply Br. at 2. At the suppression hearing, counsel for Mr.

Whitaker stated that the FBI “must tell the judge all of the salient information so

the judge can make an impartial decision.” II R. at 9-10. The magistrate judge

responded:

      Where is the law that says that they need to do that? The law says
      that they need to establish probable cause, provide sufficient facts to
      have probable cause for the issuance of a warrant. That’s what the
      law requires. That’s what the Fourth Amendment requires. Where
      does it say they have to tell the judge everything?

Id. at 10. It should first be noted that the district court reviewed the magistrate

judge’s recommendation de novo, and, further, that the recommendation did not

include a statement to this effect. In any event, even if the district court’s order

can be read to have adopted the above statement, the district court did not commit


                                          -7-
reversible error. While this statement is inconsistent with Kennedy (insofar as it

can be read to mean that police officers may withhold material information from

the court in applying for a warrant), see Kennedy, 131 F.3d at 1375, the

magistrate judge proceeded to correctly analyze Mr. Whitaker’s Franks hearing

request, both at the hearing and in his report and recommendation. At the

hearing, the magistrate judge repeatedly asked counsel for Mr. Whitaker whether

the warrant affidavit, independent of Mr. Tooker’s statement, supported a finding

of probable cause. II R. at 10, 13, 15-16. The judge posited the same question in

the report and recommendation. See also I R. doc. 99, at 9.

      AFFIRMED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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