W.D.Ky.: “Logical inferences cannot constitute false or misleading statements” for Franks purposes

Based on a jail call that confederates were “‘moving their stuff’ to the ‘new place’” it was a logical inference it was the place named in the search warrant. Defendant’s Franks challenge that the inference isn’t supportable fails. “Logical inferences cannot constitute false or misleading statements” for Franks purposes. United States v. Nguyen, 2015 U.S. Dist. LEXIS 27557 (W.D.Ky. March 6, 2015), R&R 2014 U.S. Dist. LEXIS 182631 (W.D.Ky. November 21, 2014):

The Court’s review of Leveritt’s affidavit reveals no misstatement of fact, but instead an expressed “belief” that Ignacio was referring to Arbor Oak Drive as the place to which she was moving her and Nguyen’s belongings when she spoke to Nguyen in jail on January 16, 2014. (Leveritt Aff. ¶ 10). In support of his belief, Leveritt noted that several vehicles associated with Nguyen, including a moving van, were observed at Nguyen’s Tuscany Valley Drive residence on January 14, 2014, and that some of those same vehicles were subsequently seen at Arbor Oak Drive. (Leveritt Aff. ¶¶ 6-8). Bridging these two locations was the change of address form Nguyen and Ignacio filed with the postal service indicating they were moving (hence the moving van) from Tuscany Valley Drive to Arbor Oak Drive on January 15, 2014. Thus it seems not only reasonable, but almost unquestionable, that when Ignacio told her boyfriend on January 16, 2014, that she was “moving their stuff” to the “new place”, that place was the Arbor Oak Drive residence. Leveritt’s stated inference in this regard was solidly supported by the facts he laid out in the application for the search warrant.

Logical inferences cannot constitute false or misleading statements. See Blakeney v. United States, 191 F.3d 451, at *4 (6th Cir. 1999) (table). In Blakeney, a petitioner challenged his conviction pursuant to 28 U.S.C. § 2255 alleging that the affidavit in support of a search warrant contained an intentionally false statement. Id., at *1. In that affidavit, a law enforcement agent stated he saw a co-defendant of petitioner’s take a plastic garbage bag from his trunk and place it in a dumpster. Id., at *2. In fact, the agent saw the co-defendant retrieve the garbage bag from his trunk, saw him walk around a building with it, and return empty handed. Id., at *1. He then looked into the dumpster behind the building once the co-defendant had left the area, and saw one plastic garbage bag that looked identical to the one that the co-defendant had carried behind the building. Id. The Sixth Circuit found that “[t]here [was] no indication that [the agent’s] statement was anything other than a permissible and logical inference, and Petitioner has presented no evidence which would establish that [the agent] made a false statement knowingly or recklessly, as required by Franks.” Id., at *4.

This case requires the same conclusion as Blakeney. Leveritt knew that Nguyen and Ignacio had changed their address the day before Nguyen was lodged in jail and that vehicles linked to Nguyen were seen parked at or near the Arbor Oak Drive residence after the change of address form was filed. Coupled with the conversation between Nguyen and Ignacio on January 16, 2014, Leveritt’s inference that “the new spot” was the residence at Arbor Oak Drive was both permissible and logical. Nguyen has failed to demonstrate that any statements in Leveritt’s affidavit were false, much less that they were recklessly made or intentionally deceptive. Therefore, Nguyen is not entitled to a Franks hearing.