United States Court of Appeals For the First Circuit

No. 20-1359

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID MAGLIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Chief Judge, Barron, Circuit Judge, and Singal, District Judge.

Ashley P. Allen and Sibbison Dejuneas & Allen were on brief, for appellant. Randall E. Kromm, Assistant United States Attorney, and Nathaniel R. Mendell, Acting United States Attorney, were on brief, for appellee.

December 23, 2021

 Of the District of Maine, sitting by designation. SINGAL, District Judge. Following a jury trial,

defendant-appellant David Maglio was convicted of possession with

intent to distribute marijuana in violation of

(a)(1), and possession of a firearm and ammunition by a

convicted felon in violation of

(g)(1). He was

sentenced to 96 months of imprisonment followed by 60 months of

supervised release. In this appeal, he contends that the district

court erred by not suppressing evidence obtained as a result of

the execution of a search warrant at his residence. Upon due

consideration of his asserted errors, we affirm.

I. BACKGROUND

A. The Search

On March 17, 2016, law enforcement executed a search

warrant on Maglio's residence located at 83 Main Street in Hull,

Massachusetts. This search resulted in the seizure of a handgun,

a semi-automatic rifle, ammunition, packaged marijuana, marijuana

plants in various states of cultivation, and more than $5,000 in

cash.

The warrant was issued by a Massachusetts state trial

court, which had found probable cause to believe a search would

yield evidence of criminal activity. This finding, in turn, relied

on a fourteen-page affidavit by Sergeant Detective Craig Lepro of

the Hull Police Department (the "Lepro Affidavit").

- 2 - B. The Search Warrant Application

As recounted in his affidavit, Lepro then had twenty

years of law enforcement experience, including training and prior

investigative experience related to indoor marijuana grows. Based

on that experience and months of investigation, Lepro asserted

there was probable cause to believe there was an illegal indoor

marijuana grow at 83 Main Street. In support of that assertion,

the Lepro Affidavit compiled information from a variety of sources

including an informant, surveillance of the residence, as well as

searches of government records, including the Massachusetts

Department of Criminal Justice Information System ("CJIS"), and

electricity records.

1. The Informant

Lepro described in detail information obtained from an

arrested informant, Vinicio Albuquerque. As noted by Lepro,

Albuquerque had an extensive criminal history, including prior

charges for drug distribution and a total of 39 adult criminal

appearances.

Although Lepro did not speak with Albuquerque directly,

he recounted information Albuquerque provided to Deputy Sheriff

John Campbell of the Essex County Sheriff's Department following

his arrest on January 20, 2016. On that day, the Danvers Police

Department arrested Albuquerque at the Danvers Econo Lodge after

he was found in possession of over fifteen pounds of marijuana,

- 3 - along with various items used to harvest and manufacture marijuana.

Albuquerque identified this marijuana as belonging to David Maglio

of 83 Main Street.

Albuquerque further reported that Maglio had an indoor

marijuana grow at this location with "a street value worth tens of

thousands of dollars." Albuquerque also claimed that a week prior

to his arrest he had observed "at least five firearms" in Maglio's

basement, one of which appeared to be a compact-style, fully

automatic firearm. Albuquerque indicated that marijuana was being

processed at a second location in West Roxbury. As disclosed in

the Lepro Affidavit, Albuquerque advised Campbell that he was

informing on Maglio because Maglio would not post the $1,000 bail

he needed to secure his release from the Essex County Correctional

Facility.1

Lepro also included information culled from the police

report of Albuquerque's January 20th arrest. According to that

report, Albuquerque had visible bruises and abrasions, which he

explained were the result of having been beaten up at 130 Grove

1 Beyond disclosing Albuquerque's motivations, Lepro also disclosed Albuquerque's contacts with local law enforcement in early January 2016. These contacts included an incident in which Albuquerque was found unresponsive behind the wheel of an improperly registered Hummer. At that time, he was transported to the hospital and the vehicle was impounded. In the two days following that incident, Albuquerque had additional contacts with a different local police department, which resulted in him being transported to a shelter in Quincy.

- 4 - Street in West Roxbury (which was his address in the CJIS).

Albuquerque indicated that the Boston Police were aware of this

incident and the marijuana situation. Danvers Police had in turn

confirmed with the Boston Police Albuquerque's recent involvement

in a fight.

In fact, following their response to the January 17th

fight in West Roxbury, Boston Police had obtained and executed a

search warrant at 130 Grove Street. Of Albuquerque's role in that

search warrant, Lepro asserted that the discovery of a THC

extraction lab at 130 Grove Street "demonstrates the Boston Police

were able to corroborate information supplied by Albuquerque and

the seizure of the illegal lab." Lepro further described

Albuquerque as having "provided reliable information to law

enforcement" that resulted in the "discovery of a THC lab and the

prosecution of the offenders."

2. The Surveillance

Following the receipt of information from Albuquerque,

Lepro and another detective surveilled 83 Main Street on January

29, 2016. Lepro reported observing Maglio on the premises and

detecting "a strong pungent odor of fresh [m]arijuana emanating

from approximately 50 feet from the property." Based on his

experience, Lepro asserted that this odor was indicative of a

ventilated indoor marijuana grow at 83 Main Street.

- 5 - 3. The Records

Beyond this surveillance of the address, Lepro also

confirmed that two vehicles he observed frequently parked at

83 Main Street were registered to Maglio and Erika Zerkel,

respectively. Lepro's review of available records for 83 Main

Street showed Zerkel purchasing the property in September 2015 and

occupying the residence with her spouse, Maglio.

Lepro also subpoenaed monthly utility bills for 83 Main

Street. From the time that Zerkel registered as the new owner of

this residence, the monthly kilowatt hour (kWh) usage and the

monthly amounts billed, as reported in the Lepro Affidavit, were

as follows:

September 2015 172 kWh $73.82 October 2015 2377 kWh $373.82 November 2015 6661 kWh $1,066.82 December 2015 9090 kWh $2,474.35 January 2016 6302 kWh $1,998.00

In Lepro's experience based on past investigations, these amounts

reflected well above-average usage, as the average monthly usage

in Hull was 750 kWh. Moreover, Lepro explained that the kWh

figures for 83 Main Street and their pattern of increase and later

decrease indicated an indoor grow. Lepro also sampled three other

comparably sized houses in the area for the same time period and

described the average monthly bills for these residences as ranging

from $105.43 to $253.28.

- 6 - The Lepro Affidavit also noted that Maglio's criminal

record included 136 adult criminal appearances and 8 juvenile

appearances. His convictions included unlawful possession of a

firearm and ammunition, narcotics offenses, and assault with a

dangerous weapon. In July 2015, Maglio was arraigned for

possession with intent to distribute a controlled substance. The

police report associated with this arrest (the "Rutland Report")

reflected that officers had seized 59 marijuana plants from a

property in Rutland, Massachusetts. According to Lepro's

research, Maglio did not have any Massachusetts record of firearm

ownership or medical marijuana registration.

Lepro also included information regarding a November

2015 vehicle collision at 83 Main Street. According to the

responding officers, a Nissan owned by Zerkel struck another

vehicle while exiting the property's driveway. The Nissan was

being operated by Daniel Gruen, whose mailing address was,

familiarly, 130 Grove Street, West Roxbury. Maglio was the only

passenger. When the responding officer walked up the driveway to

inspect the Nissan's damage, Maglio confronted the officer and

told him he was not allowed on his property, becoming increasingly

agitated. The officer found Maglio's behavior suspicious.

C. The Initial Motions

In August 2017, Maglio moved for a hearing under Franks

v. Delaware,

(1978), due to alleged false statements

- 7 - and omissions in the Lepro Affidavit. He also sought to suppress

all evidence obtained as a result of the search of his house.

In these motions, Maglio asserted that the Lepro

Affidavit had falsely portrayed Albuquerque's role in the search

warrant for the THC lab at 130 Grove Street. Maglio proffered

that, in reality, the relevant police reports showed that officers

responding to the fracas at 130 Grove Street had discovered the

THC lab in plain view and had obtained a search warrant on that

basis. Maglio also asserted that Lepro had disregarded a

conversation recorded in the Rutland Report, where it was intimated

that Maglio had a medical marijuana registration. Maglio contended

that given Lepro's review of the Rutland Report, he recklessly

failed to conduct a reasonable search for Maglio's medical

marijuana registration status. Maglio argued that when reformed

to correct Lepro's inclusion of false information about his

registration status and Albuquerque's prior cooperation, the Lepro

Affidavit failed to establish probable cause for the search of

83 Main Street.

In an October 2018 oral ruling, the district court

ultimately held that Maglio had not demonstrated that the

challenged statements were material to the finding of probable

cause. On this basis, the district court denied Maglio's motion

to suppress without convening a Franks hearing.

- 8 - D. The Renewed Motion

A year later, while in final preparations for trial,

Maglio filed a renewed and supplemental motion to suppress, which

sought both a Franks hearing and an evidentiary hearing.

In addition to asking the district court to reconsider

its prior denial, this motion asserted other errors and omissions

in the underlying search warrant affidavit. Specifically, Maglio

claimed inaccuracies in Lepro's analysis of the electricity

records. He faulted the inclusion of past due balances, which

inflated the billed amounts for multiple months, and questioned

Lepro's reported average power usage of 750 kWh. He also faulted

Lepro for omitting a note in the electricity records internally

discussing a "high read" for 83 Main Street. Additionally, Maglio

suggested that Lepro's asserted detection of marijuana odor

50 feet from the property could only be accurate if Lepro had

impermissibly entered the property's curtilage.

As to the informant, Maglio refined his arguments that

Albuquerque's statements lacked important indicia of reliability.

He cited the lack of direct contact between Lepro and Albuquerque.

He also asserted that Lepro made improper inferences regarding the

source of the marijuana possessed by Albuquerque as well as what

Albuquerque observed in terms of marijuana and firearms at 83 Main

Street. He called into the question the timing of Albuquerque's

interview and his actual motivations for informing on Maglio due

- 9 - to the noted amount of Albuquerque's bail, which was had been

$5,000 and was not reduced to $1,000 until January 28, 2016.

In sum, Maglio asserted that a warrant reformed to

correct all of his alleged falsehoods and omissions would contain

insufficient facts "to corroborate the informant or support

probable cause."

At an October 2019 pretrial conference, the district

court granted reconsideration and heard argument, indicating that

it was considering Maglio's arguments for suppression de novo.

The district court then again denied all requested relief without

convening any evidentiary hearing.2 This denial was ultimately

based on a finding that the Lepro Affidavit "amply" provided

probable cause and no alleged inaccuracies or omissions were

individually or cumulatively material to the probable cause

finding.3

2 In addition to the oral ruling on October 22, 2019, the district court later docketed a written decision, which it characterized as containing the same findings and analysis, but adding some factual summary, discussion, and citations. We have reviewed and considered both the oral ruling and the later docketed memorandum in the context of resolving this appeal.

3 The district court agreed with Maglio that there were some errors with Lepro's characterization of the extent of the electricity usage, including the failure to acknowledge that the amounts owed incorporated prior unpaid balances. However, as noted by the district court, the evidence proffered by Maglio would still support a finding that Maglio's electricity usage was triple that of any of the comparators.

- 10 - II. DISCUSSION

A. Probable Cause

We review de novo the district court's conclusion that

the facts of a search warrant affidavit constitute probable cause.

See United States v. Austin,

(1st Cir. 2021).

Probable cause for a search "exists where there is a fair

probability that . . . evidence of a crime will be found in a

particular place."

(alteration in original) (quoting United

States v. Silva,

(1st Cir. 2014)). "The probable

cause standard 'is not a high bar.'" United States v. Adams,

(1st Cir. 2020) (quoting Kaley v. United States,

(2014)). As we have previously explained, this is

a "practical, common-sense" inquiry. United States v. Dixon,

(1st Cir. 2015) (quoting United States v. Feliz,

(1st Cir. 1999)).

We normally limit our review to "the four corners of the

affidavit." Austin,

. However, in this case, the

district court's ultimate determination rested on a reformed

version of the Lepro Affidavit that disregarded statements about

Albuquerque's role in the 130 Grove Street search, Maglio's lack

of a medical marijuana registration, as well as Maglio's other

asserted factual errors and omissions. Thus, we consider whether

this reformed version of the Lepro Affidavit supported a finding

of probable cause to search 83 Main Street.

- 11 - First, putting aside any of the information provided by

Albuquerque, it is undisputed that the affidavit accurately

summarized Maglio's criminal history, including a pending charge

related to a marijuana grow in Rutland and a previous firearms

conviction. The affidavit also recounted a local police response

to a motor vehicle accident at 83 Main Street, which involved a

suspicious encounter with an agitated Maglio. Significantly, this

accident also separately tied Maglio to a resident of 130 Grove

Street –- where police found a THC lab. In summary, these

unopposed portions of the affidavit depict Maglio as a person with

an extensive history of relevant criminal conduct, along with

recent links to illegal marijuana production, as well as

demonstrated suspicious behavior when an officer approached

83 Main Street.

Turning to Albuquerque, before the district court and in

this appeal, Maglio has raised specific concerns about omissions

and misstatements surrounding this informant. While Maglio

assails Albuquerque's credibility, his criticisms do little

damage. "An informant's trustworthiness may be enhanced in a

number of ways, including his willingness to reveal his identity,

the level of detail in his account, the basis of his knowledge,

and the extent to which his statements are against his interest."

United States v. Tanguay,

(1st Cir. 2015) (citation

omitted). "A probable cause finding may be based on an informant's

- 12 - tip so long as the probability of a lying or inaccurate informer

has been sufficiently reduced." United States v. Gifford,

(1st Cir. 2013). In addition to the factors

demonstrating probable veracity cited above, we consider "whether

some or all of the informant's factual statements were corroborated

wherever reasonable or practicable" and "whether a law enforcement

affiant assessed, from his professional standpoint, experience,

and expertise, the probable significance of the informant's

provided information." See

Here, Albuquerque's identity was revealed and he was in

the custody of law enforcement. Dixon,

(fact that

officers "would have been able to hold the [informant] responsible

had he provided false information" was indicative of probable

veracity). As to detail, Albuquerque told Campbell that the

cultivated marijuana he was found with came from the indoor grow

in Maglio's basement, and further provided a first-hand

observation of firearms at this location. He also described the

scale of Maglio's operation, including the involvement of a second

property in West Roxbury. In short, Albuquerque indicated that he

had personally observed criminal activity within 83 Main Street.

See, e.g.,

(describing "specific, first-hand account of

possible criminal activity" as "a hallmark of a credible tip"

(quoting United States v. Greenburg,

(1st Cir.

2005))). Moreover, while Maglio argues that Albuquerque was self-

- 13 - interestedly pointing the finger at Maglio, Albuquerque was

potentially implicating himself in a larger marijuana conspiracy

via the information he provided. Thus, Albuquerque's statements

can be viewed as against his interest, which only bolsters the

reliability of this information.

In addition to these indicia of trustworthiness, the

affidavit independently corroborated critical portions of

Albuquerque's information. For instance, other independent

records corroborated his identification of Maglio as residing at

83 Main Street and Lepro observed Maglio's vehicle parked at this

location on numerous occasions. See Dixon,

("Corroboration of even innocent activity reported in the tip may

support a finding of probable cause." (quoting Greenburg,

)). Given this corroboration and the other above-noted

indicia of credibility, the information provided by Albuquerque

can be properly considered as part of the probable cause calculus.

Considering the totality of the credible evidence in the

Lepro Affidavit, as reformed by the district court, we agree that

ample probable cause existed to support the issuance of the search

warrant for 83 Main Street.

In addition to his challenge to the district court's

ultimate probable cause determination, Maglio separately contends

that the district court made several erroneous factual findings

that affected its outcome. We review the district court's factual

- 14 - findings for clear error, see United States v. Barbosa,

(1st Cir. 2018), and find none. For the reasons already

discussed, the district court's findings that Albuquerque

"provided detailed information" and "had personal knowledge of the

matters" he discussed with Campbell were well supported by the

uncontested contents of the affidavit. Although we have said that

"face-to-face contact between the agent and informant" and an

agent's opportunity to personally question him generally provides

indicia of that informant's reliability, see, e.g., Dixon,

; Greenburg,

, the absence of such an

opportunity does not necessarily render the tip unreliable.

Particularly here, where the tip was relayed from another officer

who had such face-to-face contact with the informant. Maglio's

other challenges to the court's factual findings, are similarly

unconvincing. The court's reading of the affidavit was reasonable,

consistent with the information provided therein, and not clearly

erroneous.

B. Lack of Hearings

Moreover, we find no error in the district court's

decision to deny the motion to suppress without convening a Franks

hearing or other evidentiary hearing.

1. Franks Hearing

As to the Franks hearing request, "we review the District

Court's factual determinations in denying a motion for a Franks

- 15 - hearing for clear error, and its determination of whether the

defendant has made a substantial preliminary showing that the

omitted information was material to the finding of probable cause

de novo." United States v. Veloz,

, 427–28 (1st Cir.

2020) (citation omitted). "[A] defendant is not entitled to a

Franks hearing as of right." Barbosa,

. Rather,

a defendant is entitled to an evidentiary hearing to test the veracity of a warrant affidavit if he can make a substantial showing that (1) the affiant intentionally or with reckless disregard for the truth included a false statement in the affidavit, or omitted information from the affidavit; and (2) such false statement or omitted information was material to the probable cause inquiry.

Austin,

(citations omitted).

Ultimately, the district court concluded that Maglio

could not satisfy the second prong, materiality, either

cumulatively or as to any particular alleged omission or false

statement. For the same reasons supporting our finding of probable

cause based on the reformed version of the Lepro Affidavit, we

also find no error in the district court's conclusion that a Franks

hearing was not warranted because Maglio failed to make a

"substantial showing" that he could satisfy the materiality prong

of the analysis.

2. Suppression Hearing

Finally, as to Maglio's request for an evidentiary

hearing on his suppression motion, our review is for abuse of

discretion. See United States v. Maldonado-Peña,

, 23

- 16 - (1st Cir. 2021). Generally, a defendant must show "that material

facts are in doubt or dispute, and that such facts cannot reliably

be resolved on a paper record -- most critically, he must show

that there are factual disputes which, if resolved in his favor,

would entitle him to the requested relief."

(quoting United

States v. Ponzo,

(1st Cir. 2017)) (internal

quotation marks and additional citations omitted). On appeal,

Maglio asserts that the district court should have held an

evidentiary hearing to resolve (1) the exact position from which

Lepro surveilled the property; and (2) whether Albuquerque

obtained the marijuana from Maglio or 130 Grove Street.4

Maglio argues that it is important to know from where

Lepro surveilled his property because if Lepro had trespassed on

the property, Lepro could have committed a warrantless search under

the Fourth Amendment. In support of his request for an evidentiary

hearing on this point, however, Maglio points to nothing in the

record that suggests that Lepro was not where he was allowed to

be. He merely argues that Lepro's exact location is unknown, which

is insufficient by itself to show that "material facts are in doubt

or dispute."

We thus do not find that the district court

4 As to the need for an evidentiary hearing on the source of the marijuana possessed by Albuquerque, we alternatively deem the argument waived because it was not made to the district court. See United States v. Rodrigues,

, 13 n.6 (1st Cir. 2017).

- 17 - abused its discretion by denying Maglio's request for an

evidentiary hearing on this ground.

We also conclude that the district court did not abuse

its discretion when it denied Maglio's request for an evidentiary

hearing to determine where Albuquerque obtained the marijuana, as

resolution of that issue in Maglio's favor would not have entitled

him to suppression even if Albuquerque had obtained the marijuana

from someone other than Maglio.

Accordingly, we find Maglio's various motions that

ultimately sought to suppress the evidence seized from his

residence were correctly denied.

III. CONCLUSION

For the foregoing reasons, Maglio's conviction is

Affirmed.

- 18 -