     14-4489-cr
     United States v. Filippi

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of November, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-4489-cr
16
17       AMNON FILIPPI,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        LUCAS ANDERSON (Jeremy
22                                             Schneider, on the brief),
23                                             Rothman, Schneider, Soloway &
24                                             Stern, LLP, New York, NY.
25
26       FOR APPELLEE:                         ELISHA J. KOBRE (Karl Metzner,
27                                             on the brief), for Preet
28                                             Bharara, United States Attorney

                                                  1
 1                              for the Southern District of New
 2                              York, New York, NY.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Abrams, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Amnon Filippi appeals from the judgment of the United
12   States District Court for the Southern District of New York
13   (Abrams, J.), convicting him (inter alia) of (i) the
14   manufacture and distribution, and possession with the intent
15   to manufacture and distribute, of one hundred or more
16   marijuana plants; and (ii) conspiracy to do so. Filippi was
17   sentenced chiefly to 60 months’ imprisonment and forfeiture
18   in the amount of $150,000. Filippi challenges the denial of
19   his motion to suppress (based on an allegedly deficient
20   search warrant), selective prosecution of the federal
21   marijuana laws, and the forfeiture order. We assume the
22   parties’ familiarity with the underlying facts, the
23   procedural history, and the issues presented for review.
24
25        1. Under Franks v. Delaware, 438 U.S. 154 (1978), a
26   defendant is entitled to a hearing to test the veracity of
27   an affiant’s statements in a warrant application if he makes
28   a “substantial preliminary showing that [i] a deliberate
29   falsehood or statement made with reckless disregard for the
30   truth was included in the warrant affidavit and [ii] the
31   statement was necessary to the judge’s finding of probable
32   cause.” United States v. Falso, 544 F.3d 110, 125 (2d Cir.
33   2008). This substantial preliminary showing “must be
34   accompanied by an offer of proof.” Id. at 126 (quoting
35   Franks, 438 U.S. at 171). “[C]redible and probative
36   evidence” must be adduced that the deficiencies in the
37   warrant application were “designed to mislead” or were “made
38   in reckless disregard of whether [they] would mislead.”
39   United States v. Rajaratnam, 719 F.3d 139, 154 (2d Cir.
40   2013) (internal quotation marks and alterations omitted).
41   Whether the deficiencies were material is determined by a
42   process of subtraction: after disregarding the allegedly
43   false statements, do the remaining portions of the affidavit
44   support probable cause to issue the warrant. United States
45   v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003). We review the
46   district court’s findings regarding the first prong for


                                  2
 1   clear error and the second prong de novo. United States v.
 2   Mandell, 752 F.3d 544, 552 (2d Cir. 2014).
 3
 4        Filippi’s suppression motion and request for a Franks
 5   hearing were properly denied. While the affiant
 6   misidentified one of the individuals near the warehouse in
 7   surveillance footage, Filippi has not made a “substantial
 8   preliminary showing” that this was done with the intent to
 9   mislead or in reckless disregard of whether it would
10   mislead. Filippi has made no “offer of proof” to support
11   his allegations of recklessness, Falso, 544 F.3d at 126, and
12   the affiant had valid, independent reasons for believing the
13   person in the surveillance footage was the individual named
14   in the affidavit.
15
16        In any event, other facts in the affidavit sufficiently
17   support probable cause. The affidavit contained
18   observations that, based on the affiant’s training and
19   experience, indicated that the warehouse was being used to
20   conduct a marijuana growing operation, and was supported by
21   evidence that the lessee of the warehouse had used a nearby
22   warehouse to operate a marijuana growing business and was
23   seeking to open another marijuana grow house. The finding
24   that the affiant did not intentionally or recklessly mislead
25   the magistrate judge was not clearly erroneous. On a de
26   novo review, we agree that any falsehood was immaterial.
27
28        2. The prosecution of Filippi did not violate his
29   constitutional rights. Because Filippi did not raise this
30   argument below, he must demonstrate plain error. United
31   States v. Edwards, 342 F.3d 168, 179 (2d Cir. 2003). This
32   he utterly fails to do. The classification of marijuana as
33   a Schedule I drug under the Controlled Substances Act is
34   constitutional; the legalization of marijuana in some states
35   for medicinal purposes does not change the continued
36   illegality of marijuana at the federal level; and the
37   exercise of discretion by federal prosecutors to charge
38   individuals with marijuana-related offenses in some states
39   but not others is consistent with the Due Process and Equal
40   Protection Clauses of the United States Constitution.
41   United States v. Canori, 737 F.3d 181, 183-85 (2d Cir.
42   2013).
43
44        3. Pursuant to the narcotics forfeiture statute,
45   Filippi must forfeit “any property constituting, or derived
46   from, any proceeds [he] obtained, directly or indirectly, as
47   the result of [his] violation.” 21 U.S.C. § 853(a)(1). The

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 1   calculation of forfeiture “is not an exact science”; so a
 2   court may “use general points of reference as a starting
 3   point for calculating the losses or gains from [illicit
 4   activity] and may make reasonable extrapolations from the
 5   evidence established by a preponderance of the evidence at
 6   the sentencing proceeding.” United States v. Treacy, 639
 7   F.3d 32, 48 (2d Cir. 2011). We review the district court’s
 8   legal conclusions de novo and its factual findings for clear
 9   error. Id. at 47.
10
11        The district court’s conclusion that Filippi must
12   forfeit $150,000 was based on trial testimony that the
13   marijuana operation yielded at least 30 pounds of high
14   quality marijuana which could be sold for at least $5000 per
15   pound at wholesale in New York City during the course of the
16   conspiracy. The district court did not commit clear err in
17   relying on this testimony to arrive at $150,000. Nor did
18   the district court clearly error in concluding Filippi
19   obtained proceeds of at least $150,000 from the sale and
20   distribution of this marijuana.
21
22        Accordingly, and finding no merit in Filippi’s other
23   arguments, we hereby AFFIRM the judgment of the district
24   court.
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




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