     Case: 17-50567      Document: 00514310800         Page: 1    Date Filed: 01/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-50567
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 17, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

ADOLFO ORTEGA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-398-1


Before KING, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Adolfo Ortega was convicted for possession of cocaine and firearms
uncovered during the execution of a search warrant. We vacated Ortega’s
conviction and sentence, and remanded his case for a Franks hearing—a
chance for him to show that the search warrant’s supporting affidavit
contained an intentional or reckless false statement that if excised would



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-50567

destroy probable cause. United States v. Ortega, 854 F.3d 818, 829 (5th Cir.
2017). The sole issue on remand was whether a statement in the affidavit,
which we deemed false, was made by the affiant with the requisite mental
state. The district court found the statement was not made intentionally or
recklessly, and thus rejected Ortega’s Franks challenge and reinstated his
conviction and sentence. This finding is free of clear error, and therefore we
AFFIRM Ortega’s conviction and sentence.
                                       I.
      Adolfo Ortega was indicted for possession with intent to distribute 500
grams or more of cocaine and possession of a firearm in furtherance of a drug
trafficking crime. After Ortega’s motion to suppress the cocaine and firearms
was denied, he pleaded guilty to both offenses pursuant to a plea agreement.
Ortega’s plea agreement preserved his right to appeal the suppression motion.
He exercised that right after the district court sentenced him to 120 months’
imprisonment.
      In this first appeal, Ortega argued, among other things, that the search
warrant whose execution revealed his cocaine stash and guns was invalid
under Franks v. Delaware, 438 U.S. 154 (1978). Of paramount importance to
that first appeal, and this one as well, was the warrant’s supporting affidavit,
created by San Antonio Police Officer Matthew Parkinson. Parkinson’s
affidavit stated:
      Affiant did on the 18th of April, 2013 receive information from a
      credible and reliable person who has on previous occasions given
      Affiant information regarding the trafficking and possession of
      controlled substances which has proven to be true and correct but
      whose identity cannot be revealed for security reasons.
      The said credible and reliable person stated that they did within
      the last 48 [hours] see a controlled substance, to wit Cocaine, in
      the possession of the aforesaid Defendant[ ] Ortega . . . inside the
      location at [the address for Ortega’s house].
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Parkinson’s affidavit further stated that surveillance of Ortega’s house
revealed that an unspecified number of individuals would occasionally enter
Ortega’s house for short periods of time and then leave. Other individuals
would make hand-to-hand exchanges at Ortega’s front door with someone from
the house. “These types of behaviors,” according to Parkinson’s affidavit, “are
consistent with the buying and selling of narcotics.”
      Ortega attacked the veracity of part of Parkinson’s affidavit—more
precisely, the part where Parkinson swore that he had “receive[d] information”
from an informant who had “on previous occasions given” him information
which proved reliable. This argument had been raised below and rejected by
the district court, after it held a suppression hearing where Parkinson
testified.
      We deemed the relevant statement false. Plainly read, the statement
means that Parkinson conversed directly with the informant. Our review of the
suppression hearing record revealed, however, that no proper conversation
occurred. At most, Parkinson observed a fellow officer, Mario Jacinto, and the
informant conversing in Spanish, a language in which Parkinson is not fluent.
Jacinto would then translate the informant’s message to Parkinson. We also
held that were this false statement excised, the warrant would not be
supported by probable cause. The reformed affidavit would not indicate that
the tip was credible or support the allegation that cocaine could be found in
Ortega’s house.
      But instead of reversing, we vacated and remanded. No finding of fact
had been made on the question of Parkinson’s intent. We declined to be the
first court to rule on the issue. Accordingly, we vacated Ortega’s conviction and
sentence, and remanded to the district court with instructions to make a
factual finding on Parkinson’s intent.


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       On remand, the district court held another suppression hearing. Once
again, Parkinson testified. Parkinson explained that when he submitted the
affidavit in April 2013, he was at least a 13-year veteran of the San Antonio
Police Department (“SAPD”). Parkinson, however, was new to the SAPD Gang
Unit. He started working with the Gang Unit at the end of 2012 and was
formally transferred at the start of 2013. When he started working for the
Gang Unit, Parkinson heard from an informant—not the one referenced in
relevant affidavit—that Ortega sold cocaine.
       Because Parkinson had less than three years of experience as a detective
and was the “the new guy” in the Gang Unit, he was assigned to work with
other officers. One of those officers was Jacinto. While the pair worked
together, one of Jacinto’s informants told them that he had bought cocaine from
Ortega. Parkinson testified that this same informant had previously provided
him and Jacinto information that had led to cases and arrests.
       Parkinson explained the nature and circumstances of these interviews
with the informant. They occurred in the field and the office. When they
occurred, Parkinson was close to the informant—“pretty much in his right
pocket, right next to him.” 1 The informant spoke mostly Spanish. Parkinson
does not fluently speak Spanish—he cannot “speak long sentences”—and


       1 In Ortega’s first appeal, we noted that the magistrate judge who presided over the
first suppression hearing “surmised” that Parkinson “watched Jacinto interview [the
informant] through a window in an interview room.” Ortega, 854 F.3d at 827 n.9. Based on
this, we postulated that “this does not appear to be a situation in which Jacinto was merely
serving as a real time translator.” Id. This conclusion, however, was not based on anything
Parkinson said at the first suppression hearing. On remand, Parkinson clarified that he was
not in a separate room. Accordingly, the district court held that the magistrate judge had
“incorrectly suggested” that Parkinson was watching through a window. Ortega has not
argued that we are bound to our prior discussion of the facts under the law of the case. We
therefore find any such argument forfeited. See United States v. Anderson, 772 F.3d 662, 668
(11th Cir. 2014) (holding that law-of-the-case arguments may be forfeited) (citing 18B
Charles Alan Wright et al., Federal Practice & Procedure § 4478, at 668–70 (2d ed. 2002));
United States v. Scroggins, 599 F.3d 433, 446–47 & n.8 (5th Cir. 2010) (holding that failure
to adequately brief an issue results in forfeiture).
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therefore could not ask questions. But Parkinson swore that he could
understand some of what the informant said because he understands some
spoken Spanish, like “names, addresses, drugs.” Parkinson explained why this
was the case. According to him, his wife and her family speak Spanish, Spanish
is frequently spoken at his home, and he attends church services delivered in
Spanish. To fill in the gaps of Parkinson’s understanding, Jacinto would
translate. Jacinto would tell Parkinson in advance what questions he would
ask and then help Parkinson fill in the structure of the sentences when the
informant would reply.
      Parkinson also spoke to his intent when creating the affidavit. He stated
that he believed the affidavit was truthful—he thought he had received the
information from the informant because he was present when the information
was conveyed and could understand some of what the informant was saying.
He saw no need to explain that he and Jacinto worked together. He testified
that he had not deliberately omitted the circumstances of the interview to
secure the search warrant. He did admit that at the time he was filing out the
affidavit there was no “need for a rush on anything.” He also did not consult
an attorney, but he did need the help of other officers to “get the lingo down.”
      Ortega called no witnesses at the second suppression hearing, but his
attorney did cross-examine Parkinson. To impeach Parkinson, Ortega offered
Parkinson’s testimony from the first suppression hearing. There, Parkinson
acknowledged that the informant was Jacinto’s source and not his. Parkinson
further stated that it was Jacinto who told him that the informant’s past tips
were reliable, and that he did not know how many times the informant had
supplied credible information. Parkinson also had admitted that he did not
speak Spanish, Jacinto translated, and only Jacinto asked questions.
      Considering the evidence presented at both hearings, the district court
rejected Ortega’s renewed motion to suppress and reinstated the conviction

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and sentence. It found that Ortega had not shown that Parkinson made the
false statement intentionally or recklessly. Parkinson’s testimony was “highly
credible,” according to the district court, and the court found that his testimony
from the two hearings was generally consistent. It concluded that Parkinson
“had an objectively reasonable belief that what he included in the affidavit was
true and sufficient.” Ortega once again appealed.
      Ortega’s current appeal presents us with a single question: whether
Parkinson’s false statement—that he received the informant’s tip about Ortega
and had previously received reliable information from that informant—was
made intentionally or recklessly.
                                       II.
      The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. With some limited exceptions, it requires
police officers to secure a search warrant supported by probable cause prior to
effecting a search or seizure. See Alexander v. City of Round Rock, 854 F.3d
298, 303 (5th Cir. 2017). Oftentimes, as is the case here, information
supporting probable cause for the issuance of a warrant is provided by an
affidavit created by a law enforcement officer. See, e.g., United States v. Baker,
538 F.3d 324, 326 (5th Cir. 2008). Information within such affidavits is
presumed valid and therefore generally not subject to challenge. See United
States v. Breckenridge, 782 F.2d 1317, 1322 (5th Cir. 1986) (citing Franks, 438
U.S. at 171). But, upon a “substantial preliminary showing” that the affiant
made “a false statement knowingly and intentionally, or with reckless
disregard for the truth,” and that “the allegedly false statement is necessary to
the finding of probable cause, the Fourth Amendment requires that a hearing
be held at the defendant’s request.” Franks, 438 U.S. at 155–56. Once such a
preliminary showing is made and a Franks hearing held, as happened here, to

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void the warrant and exclude the fruits of the search the defendant must show
three things by a preponderance of the evidence. The defendant must show
that: (1) the affidavit contains a false statement, (2) the false statement was
made intentionally or with reckless disregard for the truth, and (3) if the false
statement is excised, the remainder of affidavit fails to establish probable
cause. See Ortega, 854 F.3d at 826.
      Presently, only the second element is at issue—whether Parkinson had
the requisite mental state. We determined in Ortega’s first appeal that he
satisfied the first and third elements. Id. at 827–29. It is worth noting that
Ortega’s appeal presents a particular breed of Franks challenge. No current
dispute exists over whether Parkinson justifiably believed the informant’s
underlying information. We resolved that question against Ortega in his first
appeal. See id. at 827. Instead, the parties dispute whether Parkinson
intentionally or recklessly misled the magistrate by overstating the extent of
his personal knowledge—namely, that he “receive[d] information from” the
informant who had “on previous occasions given” him information which
proved reliable. For Ortega to prevail, he must show more than mere
“negligence or innocent mistake” on Parkinson’s part. Franks, 438 U.S. at 171;
see United States v. Runyan, 290 F.3d 223, 234 n.6 (5th Cir. 2002).
      Parkinson’s precise mental state is a question of fact that we review for
clear error. See United States v. Looney, 532 F.3d 392, 395 (5th Cir. 2008) (per
curiam). Clear error occurs “if we are ‘left with a definite and firm conviction
that a mistake has been committed.’” United States v. Hernandez, 670 F.3d
616, 620 (5th Cir. 2012) (quoting United States v. Scroggins, 599 F.3d 433, 440
(5th Cir. 2010)). Where, as here, the district court heard live testimony, our
review is particularly deferential. See United States v. Tovar, 719 F.3d 376,
384 (5th Cir. 2013). In addition to deferring to the district court’s factual
findings, “the court must view the evidence ‘most favorably to the party

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prevailing below, except where such a view is inconsistent with the trial court’s
findings or is clearly erroneous considering the evidence as a whole.’”
Scroggins, 599 F.3d at 440 (quoting United States v. Shabazz, 993 F.2d 431,
434 (5th Cir. 1993)). Thus, the district court’s ruling “should be upheld ‘if there
is any reasonable view of the evidence to support it.’” United States v. Gonzalez,
190 F.3d 668, 671 (5th Cir. 1999) (quoting United States v. Tellez, 11 F.3d 530,
532 (5th Cir. 1993)).
      With this, we turn to the core of the controversy. We see no basis for
overturning the district court’s finding that Parkinson lacked an intent to
mislead. Such a finding is reasonably supported by the record. At the second
suppression hearing, Parkinson said that he believed his affidavit was
truthful. He also swore that he did not deliberately misrepresent anything in
order to secure a warrant. The district court, hearing this live testimony and
at times directly asking Parkinson questions, found his testimony highly
credible. We will not disturb this conclusion. See Tovar, 719 F.3d at 384.
      But even though we see no reason for disturbing the district court’s
finding on intent, our inquiry is not at an end. Even if Parkinson was not
cunning, he may have been careless to the point of being reckless. Such
recklessness may be shown circumstantially “when reasons to doubt [the]
information’s veracity are obvious.” United States v. Tomblin, 46 F.3d 1369,
1376 (5th Cir. 1995) (citing United States v. Williams, 737 F.2d 594, 602 (7th
Cir. 1984)); see United States v. Newton, 463 F. App’x 462, 465 (5th Cir. 2012)
(per curiam) (finding the affiant not reckless when “nothing obvious under the
circumstances” would have caused the affiant to doubt the truthfulness of the
affidavit); United States v. Brown, 631 F.3d 638, 645 (3d Cir. 2011)
(recklessness inferred if “obvious reasons” to doubt the information existed);
United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (same); Beard v. City
of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (same); United States v. Davis,

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617 F.2d 677, 694 (D.C. Cir. 1979) (same). We ultimately conclude that the
district court did not clearly err when it found that Parkinson’s statement was
made without reckless disregard for the truth.
      Factoring into our conclusion, but certainly not compelling it, is our
confidence that “[t]his entire problem could have been avoided if [Parkinson]
had simply rewritten the affidavit.” See United States v. Davis, 714 F.2d 896,
899 (9th Cir. 1983). As previously noted, “Parkinson had no obvious motivation
to lie.” Ortega, 854 F.3d at 829. A rewritten affidavit, admitting that Jacinto
translated the informant’s Spanish, would almost certainly survive judicial
scrutiny. See United States v. Ventresca, 380 U.S. 102, 111 (1965). Indeed,
Ortega previously conceded just this point. See Ortega, 854 F.3d at 829.
      We have frequently noted that a statement or omission’s materiality, or
lack thereof, has bearing on whether the affiant was reckless. See Tomblin, 46
F.3d at 1377 (declining to find that an omission was intentional or reckless
“because the balance of the information submitted in the affidavits is more
than sufficient on its own to establish probable cause”); United States v.
Namer, 680 F.2d 1088, 1094 (5th Cir. 1982) (noting that “the analytical
concepts of materiality and recklessness are often bound together”); United
States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980) (holding that the omitted
facts “were not so central as to warrant the inference that [the affiant’s] actions
were reckless”); see also United States v. Patterson, Nos. 16-1357, 16-1702,
2017 WL 6349262, at *4–5 (1st Cir. Dec. 13, 2017) (holding that the affiant’s
misstatement was not done intentionally because an accurate statement would
still have provided “ample” basis for issuance of a warrant). Put simply, the
less damaging the whole truth is to the affiant, the weaker the inference that
the affiant made a statement or omission with reckless disregard for the truth.
      That said, we are cautious not to rely solely on this factor. The fact that
Parkinson could have written a wholly truthful and sufficient affidavit cannot,

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by itself, defeat Ortega’s Franks challenge. See Davis, 714 F.2d at 899. In fact,
Parkinson’s failure to disclose facts underlying conclusory statements in his
affidavit is a factor favoring recklessness, though not a dispositive one. See
United States v. Alvarez, 127 F.3d 372, 374–75 (5th Cir. 1997). After all, “it is
the magistrate,” and not the police, “who must determine independently
whether there is probable cause.” Franks, 438 U.S. at 165. It may have been
eminently reasonable for Parkinson to infer that Jacinto was accurately
translating the informant’s message. But the Fourth Amendment requires that
“those inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise of
ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13–14 (1948).
      The factor we find most important in this case that weighs against
finding recklessness is the plausibility of Parkinson’s understanding of his
affidavit. As we previously noted, the most natural reading of the affidavit is
that Parkinson and the informant directly conversed, without a translator or
a language barrier. That said, Parkinson’s proffered reading is not so obviously
false that it amounts to a reckless disregard for the truth. Franks itself is
instructive. There, the affiant swore that he contacted two witnesses and “did
have personal conversation with both.” Franks, 438 U.S. at 157. The defendant
proffered testimony from both witnesses, who said they were never personally
interviewed by the affiant but might have talked to a different officer. Id. at
158. There, it would have been obviously false to say that the officer had a
“personal conversation” with a witness with whom he had never spoken. Here
on the other hand, it is a slight stretch but not totally baseless for Parkinson
to say he “receive[d] information” when he was present while it was conveyed,
understood some of it, and had the rest translated to him.
      Our cases confirm that the plausibility of the affiant’s proffered
interpretation weighs in favor of mere negligence and against recklessness. In

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Alvarez, the affiant swore that he had received information that the defendant
had produced a video tape showing a minor “engaging in sexual conduct.” 127
F.3d at 373. This statement was false. Id. at 374. What the affiant really had
was information that a minor exposed her breasts on the tape. Id. at 373.
Exposing breasts fell outside of Texas’s definition of “sexual conduct,” which,
in relevant part, included “lewd exhibition of the genitals.” Id. at 373–74. At
the suppression hearing, the affiant testified that he believed breasts were
genitals. Id. at 374. We refused to chalk this basic misunderstanding of human
anatomy up to mere negligence and instead held that the statement was made
with reckless disregard for the truth. Id. at 375. In Namer, the affidavit stated
that a high-level officer of a state agency had “classified” the financial
instruments the defendant dealt in as securities. 680 F.2d at 1092. In fact, the
state agency had no procedure for classifying financial instruments as
securities, and the officer had only given a qualified opinion. Id. We observed
that the term “classified” carries weight, connoting an “authoritative result of
ordered procedures and methodologies, and not an ad hoc and qualified oral
opinion of a single agency employee.” Id. at 1094. We held that the wide gap
between the affidavit’s plain meaning and the affiants’ intended meaning, the
importance of the misrepresentation for “conferring an aura of legitimacy” on
what amounted to a novel legal theory, and other circumstantial factors—such
as the experience and sophistication of the affiant and a lack of exigent
circumstances—all conclusively favored recklessness. Id.
      Comparison of this case to Alvarez and Namer demonstrates that
Parkinson’s statement was not so obviously false to amount to a reckless
disregard for the truth. The affiant’s understanding of the key term in Alvarez
was completely implausible. 127 F.3d at 375. And if his understanding were
truthfully conveyed, it would have decimated the basis for probable cause. See
id. Here in contrast, Parkinson’s interpretations of “receive” and “given” do not

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depart substantially from how they are commonly used. And, if his
understanding of the terms were fully conveyed, Parkinson’s affidavit still
would have supported a finding of probable cause. Moreover, unlike the
affiants in Namer, Parkinson was not attempting to pass pyrite off as gold. The
affiants’ misstatement in Namer was “a crucially material one” that carried an
air of authority, and thus provided their “best, if not only, hope for conferring
an aura of legitimacy on their legal theory.” 680 F.2d at 1094. Here, unlike the
term “classify,” the terms “receive” and “given” lack the same authoritative
punch. And Parkinson did not need to pin his hopes on an overstatement like
the affiants in Namer. He could have simply stated the whole truth, and, as
Ortega conceded, almost certainly would have acquired the warrant.
      Turning to the other circumstances surrounding the affidavit’s
creation—Parkinson’s relative inexperience, his failure to consult lawyers, and
the absence of evidence of exigency—we find that they favor Ortega’s position,
but not overwhelmingly so. See Alvarez, 127 F.3d at 375; Namer, 680 F.2d at
1094. These factors point in different directions and none stands out as clearly
more important than the others. As the district court found, Parkinson “was a
fairly new detective” with less than three years of experience as a detective
when he sought the search warrant. Parkinson testified that during the time
he was investigating Ortega, he was the “new guy” in the Gang Unit. He had
been a police officer for at least 13 years when he created the affidavit, but the
record does not reveal how long he had been applying for warrants or how
many applications he had prepared in the past. Parkinson testified that he
needed help from other officers to “get the lingo down.” Parkinson does admit
that he was in no rush when creating the affidavit. He also admits that he did
not consult with any lawyer. While two of these factors circumstantially favor
Ortega’s position, they are insufficient to show clear error on the part of the


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district court given Parkinson’s relative inexperience and the fact that
Parkinson’s understanding of his affidavit was not obviously false.
      To undermine Parkinson’s credibility, and thus his explanation for his
false statements, Ortega argues that Parkinson changed his story between the
two suppression hearings. According to Ortega, at the first hearing Parkinson
admitted that he did not speak Spanish, Jacinto translated for him, and
Parkinson did not ask questions. Parkinson also admitted that the informant
was not his source, that his only reason for believing the informant was reliable
was that he had been told so by Jacinto, and that he did not know how many
times the informant had provided reliable information. Ortega contends that
at the second hearing, Parkinson’s story changed. There, Parkinson testified
that he could understand some of what the informant said and that he was
present when the informant had conveyed reliable information on previous
occasions.
      Ortega faces a steep uphill battle to establish these facts, given the clear
error standard of review and the district court’s credibility findings. The
district court took live testimony and found that Parkinson was a credible
witness. It also found, based on its review of the two hearing transcripts, that
Parkinson’s   pre-appeal    and    post-remand     testimony    were    generally
consistent—both indicated that Parkinson and Jacinto “worked as a team” and
had contemporaneously received the information.
      Our review of the record reveals sufficient continuity in Parkinson’s
story to conclude that the district court’s finding was not clearly erroneous.
Parkinson’s descriptions of his Spanish language abilities do not warrant a
finding of clear error. Parkinson stated in the first hearing that he did not
speak Spanish. He appears to have meant that quite literally because his later
testimony indicates that he can understand some Spanish. Those two
statements are not plainly inconsistent, and Parkinson’s explanation for this

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mismatch—that he often listens to the language spoken and can make out
specific words, but cannot have fluent conversations—seems sensible. And
while Parkinson’s present explanation could come off as a little too convenient,
he and the district court were correct to point out that at the first hearing he
was never asked whether he understood some of what the informant said. At
this stage and without access to Parkinson’s live testimony, we are not in a
position to make such a judgment call. Instead, we defer to the district court.
With respect to Ortega’s other alleged contradiction, there appears to be none.
Parkinson’s original testimony was that the informant was Jacinto’s. This does
not conflict with his later testimony that he had been present on other
occasions when the informant relayed information to Jacinto and that he
learned from Jacinto that the information resulted in arrests. 2
                                            III.
       For the foregoing reasons, the district court’s finding that Parkinson’s
false statement was not made intentionally or recklessly is free from clear
error. Accordingly, we AFFIRM Ortega’s conviction and sentence.




       2Ortega also points out conflicts between factual conclusions in our prior opinion and
Parkinson’s testimony on remand. Ortega notes that in our prior opinion we stated that
“Parkinson admitted that he never worked with [the informant] previously; instead, [the
informant] had worked with Jacinto, who in turn told Parkinson that [the informant] had
provided reliable information in the past.” Ortega, 854 F.3d at 827. This squarely conflicts
with Parkinson’s testimony at the suppression hearing that he was present when the
informant relayed the information to Jacinto. We also stated that Parkinson “does not
understand” Spanish, id., a proposition that clearly conflicts with Parkinson’s testimony at
the second hearing and the district court’s factual findings. Ortega has not argued that we
are bound by these findings under the law of the case, and we therefore do not consider any
such argument. See supra note 1. But even if we were to consider whether the law of the case
binds us, we would conclude that it does not. The doctrine is “not an inexorable command”
and may be departed from if evidence subsequently adduced is “substantially different” from
the evidence previously before the court. See White v. Murtha, 377 F.2d 428, 431–32 (5th Cir.
1967). Where, as is the case here, “new evidence is properly introduced on an open issue not
governed by the law of the case,” we have “discretion to consider its effect on an earlier
determination now shown to be probably erroneous.” See 18B Wright et al., supra, § 4478 at
686.
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