Appeal from a judgment of the United States District Court for the Western District of New York (David G. Larimer, Judge).
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUM M ARY ORDER"). A PARTY CITING TO A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 28th day of March, two thousand eleven.
PRESENT: DENNIS JACOBS, GUIDO CALABRESI, REENA RAGGI, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on January 13, 2010,is AFFIRMED.
Defendant Albert Donald, who was convicted after trial of various narcotics trafficking offenses, see 21 U.S.C. § 841(a)(1), (b)(1)(B), appeals from the district court's judgment of conviction sentencing him to concurrent 240-month, 120-month, and 60-month terms of incarceration. Specifically, Donald challenges (1) the district court's denial of (a) his motion to suppress evidence, (b) his request for a "missing witness" charge, and (c) his motion for a new trial; (2) the sufficiency of the trial evidence supporting his conviction ; and (3) the reasonableness of his sentence. We assume the parties' familiarity with the facts and record of prior proceedings in explaining our decision to affirm.
Donald argues that evidence seized after a search of his residence pursuant to a warrant should have been suppressed because the warrant (a) was based on materially false or misleading information, see Franks v. Delaware, 438 U.S. 154, 171-72 (1978), and (b) was not supported by probable cause. We are not persuaded.
i. False Information in the Warrant Application A defendant challenging the accuracy of representations in a warrant application must demonstrate by a preponderance of the evidence "(1) that the inaccuracies were the product of a Government agent's 'deliberate falsehood' or 'reckless disregard for the truth' rather than innocent mistake, and (2) that, after setting aside the falsehoods, what remains of the warrant affidavit is insufficient to support a finding of probable cause." United States v. Coreas, 419 F.3d 151, 155 (2d Cir. 2005) (quoting Franks v. Delaware, 438 U.S. at 171-72); see also United States v. Canfield, 212 F.3d 713, 717-18 (2d Cir. 2000). Although we review de novo whether the untainted portions of a warrant application demonstrate probable cause, we review only for clear error a district court's determination of whether officers acted deliberately or recklessly. See United States v. Awadallah, 349 F.3d 42, 65 (2d Cir. 2003).
In identifying allegedly false information in the subject warrant application, Donald relies upon two later-recanted written statements of confidential informant Gregory Jasper to the effect that he provided false information that was included in the warrant application. After a Franks hearing, a magistrate judge recommended that suppression be denied because, even if Jasper's information was false, Donald failed to present any evidence that officers knew or were recklessly unaware of its falsity when they obtained the challenged warrant. We identify no error in that conclusion, which the district court adopted, because it accurately characterizes the record.
ii. Probable Cause "[P]robable cause to search is demonstrated where the totality of circumstances indicates a 'fair probability that contraband or evidence of a crime will be found in a particular place.'" Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Although the "existence of probable cause is a question of law for the court," a reviewing court nevertheless must "accord considerable deference to the probable cause determination of the issuing magistrate." Id. at 157. Thus, we will affirm where the "totality of the circumstances" afforded the issuing ...