                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 15-4103


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

JOEANN WHARTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:13-cr-00043-ELH-1)


Argued:   September 20, 2016                 Decided:   October 21, 2016


Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Harris joined.


ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.       Paul Nitze,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Judson T.
Mihok, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

      Joeann     Wharton     appeals    her     convictions    of   conspiracy,

making    a    false   statement,      theft,    and    embezzlement,    all   in

connection     with    her   unlawful   receipt    of     government    benefits.

She principally contends that the district court should have

suppressed evidence found at her house. 1              Wharton maintains that,

in the affidavit supporting the search warrant for the house,

the   affiant     recklessly    omitted       material,    exculpatory    facts.

Because the inclusion of the omitted information would not have

defeated probable cause for the search, that information was not

material.      Accordingly, we affirm the judgment of the district

court.




      1Wharton also contends that the superseding indictment did
not provide her with adequate notice of the crimes charged and
that the differences between the superseding indictment and the
Government’s proof at trial constituted a prejudicial variance
requiring reversal.     As the district court held, neither
argument is persuasive.   The superseding indictment, like that
we held sufficient in United States v. Perry, 757 F.3d 166, 172
(4th Cir. 2014), tracked the statutory language and set forth
specific details about the nature of the charges; for instance,
the superseding indictment informed Wharton of the kind and
source of the funds she assertedly embezzled and the time during
which the alleged offenses took place.     As for the divergence
between the superseding indictment and the evidence at trial,
the Government proved a narrower set of facts at trial than it
alleged in the superseding indictment, but the superseding
indictment alleged everything the Government proved at trial.
There was no reversible error.           See United States v.
Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013).


                                         2
                                                 I.

        After        their     mother’s        death         in        2002,    Wharton’s       two

granddaughters, Chaqueira Wharton and Essence Wharton, moved in

with her.            Wharton applied for, and received, Social Security

survivors’ benefits on their behalf, obligating her to spend

those    funds        for    their     care.          In    July       2012,    the    Government

learned that          the     girls    were    not         receiving      the    benefits,      and

since 2009 had not even lived with Wharton in her house on

Utrecht    Road        in     Baltimore,       Maryland.                The    Government      then

launched an investigation of Wharton’s use of the survivors’

benefits.            Special      Agent     Mark      Gray        of    the    Social       Security

Administration’s             Office    of   the       Inspector         General       headed    that

investigation.

        As part of his investigation, Agent Gray reviewed state and

federal    records          and   interviewed         Wharton’s          two    granddaughters,

Chaqueira Wharton and Essence Wharton, Wharton’s children LaSean

Wharton and Tasha Muriel, Wharton’s husband John Wharton, and

Wharton    herself.            Agent      Gray’s      investigation            uncovered       other

evidence of Wharton engaging in potentially fraudulent activity

involving government benefits.                       On January 31, 2013, a federal

grand jury indicted Wharton on two counts of theft of government

property        in    violation        of   18       U.S.C.        §    641     and    42    U.S.C.

§ 1383a(a)(3).



                                                 3
    Five months later, on June 27, 2013, the grand jury issued

a sealed superseding indictment, which was unsealed on July 10,

2013.     The superseding indictment charged both Joeann Wharton

and her husband, John Wharton, with multiple counts involving

conspiracy        to     embezzle,              embezzlement,       and      making       false

statements       to    obtain       government        benefits.        On    July    1,   2013,

while    the     superseding         indictment        remained     sealed,      Agent      Gray

sought a search warrant of the Utrecht Road house to obtain

evidence       about     John       Wharton.          In    the   affidavit      Agent      Gray

offered     in     support          of    the     search      warrant,      he      set   forth

substantial evidence of criminal activity by John Wharton and

asserted that John Wharton and Joeann Wharton lived together at

the Utrecht Road house.                   Upon consideration of the affidavit, a

magistrate       judge    issued          the    search     warrant.        Agent    Gray   and

another agent executed it the following day, uncovering a number

of documents relevant to the charges against both John Wharton

and Joeann Wharton.

    Prior to trial, Joeann Wharton moved to suppress all the

evidence obtained in that search.                           She argued that Agent Gray

had recklessly omitted material exculpatory evidence from the

affidavit, namely that John Wharton lived only in the basement

of the house.            The district court held a hearing pursuant to

Franks    v.     Delaware,          438    U.S.       154    (1978),   to     consider      the

question.             After     a    two-day          evidentiary      hearing,       and    an

                                                  4
additional         day   of   oral    argument,         the   district    court     largely

denied the suppression motion. 2

        A    lengthy     trial    followed         at    which     the   district    court

admitted evidence obtained in the search of the common areas of

the house.         The jury convicted Joeann Wharton of Social Security

fraud in violation of 42 U.S.C. § 1383a(a)(3), and convicted

both Joeann Wharton and John Wharton of conspiracy to embezzle

money from the United States in violation of 18 U.S.C. § 371,

two counts of making false statements to the SSA in violation of

42 U.S.C. § 1383a(a)(2), and two counts of embezzlement from the

United States in violation of 18 U.S.C. § 641.



                                            II.

     The       critical       information      that       Joeann    Wharton    maintains

Agent       Gray   recklessly        omitted   from       his    affidavit    were    facts

demonstrating that she and her husband “occupied different parts


        2
       The district court granted the motion with respect to
Joeann Wharton’s second floor bedroom and ordered that the
documents found there would not be admitted into evidence at her
trial. Although in its appellate brief, the Government contends
that the district court erred in suppressing these documents,
the Government acknowledges that in the district court it “did
not challenge” that decision, and simply asks us to affirm the
judgment of the district court. Brief of Appellee at 17, 26-31,
and 55.   Thus, the Government has waived any challenge to the
order concerning Joeann Wharton’s bedroom, and we do not discuss
it further. We consider the adequacy of Agent Gray’s affidavit
only with respect to the remainder of the house and henceforth
characterize that portion of the house as “the common areas.”


                                               5
of the house.”             Brief of Appellant at 23.            She contends that the

omission        of     these       facts     rendered       Agent     Gray’s       affidavit

materially       false      in     violation    of    the    Fourth       Amendment.       See

Maryland v. Garrison, 480 U.S. 79, 85 (1987) (“Plainly, if the

officers had known . . . that there were two separate dwelling

units on the third floor of 2036 Park Avenue, they would have

been obligated to exclude respondent’s apartment from the scope

of the requested warrant.”).

      The Utrecht Road house occupies three levels:                            a basement;

a main first floor; and an upstairs second floor.                                 The second

floor contains two bedrooms and a bathroom.                               The first floor

consists of a kitchen, a living/dining area, and the front door

to the house.              The basement consists of a bedroom, a separate

entrance,       a    half-bath,       a    refrigerator,       and    a    microwave.       An

interior door connects the first floor to the basement.

      For    the       most        part,    Agent    Gray’s     ten-page,         twenty-two

paragraph affidavit seeking a warrant to search the Utrecht Road

house for evidence of John Wharton’s criminal activity outlines

the nature of that activity.                  Agent Gray also made the following

representations as to the living arrangement within the house:

1)   he   and       another      agent     interviewed      John     Wharton   and       Joeann

Wharton     together          at     the    Utrecht     Road       house;    2)     at    this

interview,          “the    Whartons       stated    that    they     had    been    married

continuously for 43 years, and that they lived together” in the

                                               6
house; 3) the Baltimore Gas & Electric Company provides power to

the entire house through an account in John Wharton’s name; 4)

the Dish Network provides television service to the entire house

through an account listing both John Wharton and Joeann Wharton

as authorized users; and 5) Agent Gray knew “from interviews in

June 2013 with Lesean [sic] Wharton and his sister Tasha Muriel

that John and Joeann are currently living” in the house.                              Joeann

Wharton did not (and does not) challenge any of these facts.

What she contends is that Agent Gray recklessly omitted from his

affidavit      other     material    information            indicating    that    she     and

John occupied distinct areas of the house.

        After considering the evidence the parties produced at the

Franks hearing, the district court found that LaSean Wharton had

told Agent Gray that his parents slept in separate bedrooms but

shared a kitchen and common areas.                        The court found that Tasha

Muriel had told Agent Gray that both of her parents lived in the

Utrecht Road house, but John Wharton lived in the basement while

Joeann    Wharton      occupied      the    upstairs         floors.      According       to

Muriel,       although    John    Wharton           would    occasionally       visit    the

kitchen and dining areas, he did so by invitation only, mostly

at family gatherings.             The district court further found that

Wharton’s granddaughters had told Agent Gray that they needed to

knock    on    an   interior     door      to       the   basement,    which     typically

remained      locked,     on   the   rare           occasions   they     went    to     their

                                                7
grandfather’s part of the house.             Finally, the court found that

some of Agent Gray’s notes and the documents he obtained during

his investigation indicated that Joeann Wharton lived separately

from John Wharton in the house.              The district court concluded

that       although   Agent   Gray   recklessly   omitted   this   information

from his affidavit, because it was not material, its omission

did not violate the Fourth Amendment. 3




       3
       In so holding, the court relied on the joint cable and
utility bills, the fact that Agent Gray interviewed John Wharton
and Joeann Wharton together in the Utrecht Road house, and their
representations as to a long-standing marriage during that
interview.   The court also relied on two facts Agent Gray did
not include in his affidavit but that Wharton’s evidence at the
Franks hearing established:    (1) Tasha Muriel told Agent Gray
that John Wharton would occasionally cook in the kitchen and had
access to the dining room; and (2) LaSean Wharton told Agent
Gray that John Wharton and Joeann Wharton shared a kitchen and
common areas.   On appeal, the parties strongly dispute whether
the district court properly considered these two pieces of
additional evidence in assessing the materiality of Agent Gray’s
omissions. We have held that “[i]n evaluating whether probable
cause would have existed if the omitted statements had been
included,” a court must “only consider the information actually
presented to the magistrate during the warrant application” by
the Government.   United States v. Lull, 824 F.3d 109, 119 n.3
(4th Cir. 2016) (internal quotation marks omitted). While Lull
precludes a court from relying on extrinsic evidence the
Government offers to bolster an affidavit facing a Franks
challenge, it does not speak to whether a court can consider
extrinsic evidence offered by a defendant.    Given our holding,
we need not resolve that question in this case.



                                         8
                                         III.

     With these facts in mind, we turn to the legal question

before us -- whether the district court erred in finding that

the omissions in the affidavit were not material, and so denying

Wharton’s    suppression        motion.           When     considering        a    district

court’s    ruling    on     a   suppression        motion,      “we     review         factual

findings    for    clear    error      and    legal      determinations           de   novo.”

United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010).                                  We

“construe    the    evidence      in    the      light     most    favorable           to   the

prevailing party,” here the Government, “and give due weight to

inferences drawn from those facts by resident judges and law

enforcement officers.”          Id. (internal quotation marks omitted).

     The    Fourth       Amendment      mandates         that   “no     Warrants        shall

issue,     but     upon     probable         cause,       supported      by        Oath     or

affirmation,       and     particularly          describing       the    place         to   be

searched, and the persons or things to be seized.”                            U.S. Const.

amend. IV.        The district court properly recognized that Franks

governs     Wharton’s      challenge. 4           Defendants      may    bring          Franks

challenges both when an affidavit contains a false statement and


     4  Franks, and many of the cases applying it, involve
defendants claiming that the district court improperly denied
them an evidentiary hearing to test the integrity of the
affidavit supporting a search warrant.   Of course, because the
district court granted Wharton a Franks hearing, and there is no
challenge to that decision, we do not address that preliminary
question here.


                                             9
when the affiant has omitted material facts from the affidavit.

United States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016).                    To

establish a Franks violation, a defendant must prove that the

affiant   either   intentionally   or   recklessly     made   a    materially

false statement or that the affiant intentionally or recklessly

omitted material information from the affidavit.                  Id.    Thus,

Franks requires proof of both intentionality and materiality.

Id.   We need only discuss the materiality requirement here.

      An omission is material if it is “necessary to the [neutral

and   disinterested    magistrate’s]    finding   of    probable        cause.”

Franks, 438 U.S. at 156.      Even if relevant, information is not

material unless “its inclusion in the affidavit would defeat

probable cause.”      See United States v. Colkley, 899 F.2d 297,

301 (4th Cir. 1990).

      In assessing materiality, we “insert the facts recklessly

[or intentionally] omitted, and then determine whether or not

the corrected warrant affidavit would establish probable cause.

If the corrected warrant affidavit establishes probable cause,”

there is no Franks violation.       Miller v. Prince George’s Cty.,

475 F.3d 621, 628 (4th Cir. 2007) (internal quotation marks and

citations omitted).      Therefore, for Wharton to succeed on her

Franks challenge, she must demonstrate that the totality of both

the facts Agent Gray provided in his affidavit and the facts

that he omitted do not signal “a fair probability that . . .

                                   10
evidence    of    [John     Wharton’s]       crime    w[ould]    be    found”    in   the

common areas.          See Illinois v. Gates, 462 U.S. 213, 238 (1983)

(defining the probable cause standard).

       In   Lull,      we   recently       considered   another       Franks    omission

challenge.        We held that a law enforcement officer’s reckless

omission     of     facts    from    his     affidavit,    which       undermined     the

reliability       of    a   confidential          informant,    were    material      and

required reversal of Lull’s conviction.                        824 F.3d at 118-20.

There, a police officer had executed a search warrant of Lull’s

house and, in doing so, found drugs and weapons the Government

later used against him.              Id. at 113.        In his application for a

search warrant, the officer swore that an undercover informant

had advised him that “Lull was selling quantities of Cocaine,

Marijuana and other illegal drugs from his home address,” and

that    this      informant         “had     recently     bought       illegal     drugs

from . . . Lull.”           Id.     The officer did not disclose, however,

that immediately after completing a controlled buy with Lull,

the informant tried to steal some of the money police had given

him to make the buy.           Id. at 112-13.         We held that this omission

fundamentally        undermined      the     informant’s       reliability,      thereby

invalidating the search warrant.                  Id. at 111.

       In assessing the materiality of that omission, we noted

that the informant supplied much of the factual basis for the

affidavit.        Id. at 118.        Because the confidential informant was

                                             11
inherently    unreliable,        we     excised          his    (otherwise-undisputed)

statements from the affidavit.                     Id.     Without the informant’s

statements,       nothing    in        the        affidavit       “identifie[d]        Lull

specifically as the seller or otherwise connect[ed] him to the

drug   transaction.”        Id.       at     119.        Accordingly,      we   held    the

omission material.      Id. at 120.

       Similarly, in United States v. Tate, 524 F.3d 449, 451 (4th

Cir. 2008), we held that a defendant should have received a

Franks hearing when he offered evidence that an affiant police

officer failed to disclose that he had trespassed in searching

the defendant’s trash to obtain evidence of criminal activity.

We explained that the omission was material because “[i]f the

trash investigation was conducted illegally, the facts derived

from   it   would   have    to    be    stricken         from     the   affidavit,”    and

without those facts, “the affidavit would not have supported a

finding of probable cause.”            Id. at 457.

       In both Lull and Tate, correcting the affidavit to include

the omitted information undermined the foundational core of the

affidavit.     Here, the inclusion of the omitted information does

not do that.        For in this case, the corrected affidavit still

includes unchallenged information establishing probable cause.

       Most critical is Agent Gray’s uncontroverted account in his

affidavit    of   his   joint     interview         of     John    Wharton   and   Joeann

Wharton at the Utrecht Road house.                   During that interview, John

                                             12
and Joeann Wharton stated that they lived together at the house

and had stayed continuously married for forty-three years.                This

account alone easily demonstrates the requisite fair probability

that a search of the common areas of the house would reveal

evidence of John Wharton’s crimes.

        Moreover, two other pieces of evidence Agent Gray provided

in his affidavit -- bills for shared cable and electric services

-- buttress that conclusion.        A magistrate judge could conclude

from John Wharton’s monetary contributions to the television and

power    services   for   the   entire    house   that   he   utilized   those

services.       Indeed,    John    Wharton’s      involvement    with    those

accounts, particularly given the fact that the BGE account was

in his name only, indicates continued interaction between John

Wharton and Joeann Wharton, at least to the degree necessary to

manage the utility accounts.         These inferences further support

the view that John Wharton had access to the common areas of the

house.

     To be sure, the omitted information Agent Gray learned from

his interviews with the Wharton children and grandchildren, and

documents, some of which suggested two distinct units within the

Utrecht Road house, is relevant to the question of the Whartons’

living arrangements.        But, even considering those facts, the

corrected affidavit still establishes probable cause to search

all the common areas of the house.

                                     13
      Significantly,               nothing       in        the     omitted        information

demonstrated, or even suggested, that John Wharton lacked access

to the common areas of the house.                         For example, LaSean Wharton

had     told     Agent       Gray      that    his     parents         maintained    separate

bedrooms;       but       LaSean    never      said       that   John     Wharton    remained

exclusively downstairs or did not enter the common areas.                                  Agent

Gray’s    notes       lend      themselves      to    a    similar      inference;     to   the

extent they imply a division of the house into two distinct

units, this demonstrates only that John Wharton did not have

access to Joeann Wharton’s bedroom.                        And while the statements of

Tasha Muriel, Chaqueira Wharton, and Essence Wharton all provide

evidence of John Wharton’s lack of access to Joeann Wharton’s

bedroom (at least to the best of their knowledge), nothing in

those statements showed that John Wharton did not have access to

the common areas of the house.

      Additionally, unlike the officers in Lull and Tate, nothing

Agent     Gray     omitted         casts      doubts       on    the    inherent     validity

(whether       through          unreliability,            illegality,       etc.)     of     any

information in the original affidavit.                            Certainly the omitted

information provides more detail to the picture Agent Gray’s

affidavit painted.              However, those omitted facts simply join the

facts     Agent       Gray      proffered       to     form      the     totality     of    the

circumstances         a    magistrate         judge    would     consider     in    assessing

probable       cause      for    the    corrected         affidavit.        And     given    the

                                                14
merely relevant nature of those additional facts, their omission

does not constitute a Franks violation.

       The   only     contemporaneous        evidence    in    the     corrected

affidavit specific to John Wharton’s access to the common areas

of the house indicates that he did have access to those areas.

And nothing Agent Gray omitted from his affidavit discredited

that conclusion.        We are satisfied that, even corrected, the

affidavit    provided       the   magistrate   judge    with   “a    substantial

basis for . . . concluding that probable cause existed” that

John   Wharton      would   utilize   public    areas    and   leave    in   them

evidence of his own criminal activity.             Gates, 462 U.S. at 238-

39 (alterations in original).            Accordingly, the district court

properly held that the omissions were not material and so did

not defeat probable cause.



                                       IV.

       For the foregoing reasons, the judgment of the district

court is

                                                                       AFFIRMED.




                                       15
