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United States v. Moody

United States Court of Appeals, Fourth Circuit

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BENITEZ AUGUARIUS MOODY, Defendant-Appellant.

          Argued: December 13, 2018

          Appeal from the United States District Court for the Eastern District of Virginia at Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:16-cr-00124-HCM-DEM-1).

         ARGUED:

          James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia, for Appellant.

          Daniel Taylor Young, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

         ON BRIEF:

          G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Sherrie S. Capotosto, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

          Before MOTZ, AGEE, and RICHARDSON, Circuit Judges.

          Richardson, Circuit Judge.

         After a jury convicted Benitez Auguarius Moody of federal drug and firearm offenses, he sought an evidentiary hearing to challenge a facially sufficient search warrant affidavit. Such hearings are called "Franks hearings," named for the Supreme Court's decision permitting them in Franks v. Delaware, 438 U.S. 154 (1978). In his request, Moody argued that a police officer's trial testimony contradicted her search warrant affidavit that had led to evidence used at his trial. The district court, however, refused to hold a Franks hearing, finding that Moody had failed to make the necessary threshold showing. We affirm.

         I.

         On March 24, 2016, as part of a larger investigation into narcotics trafficking, police used a confidential informant to buy heroin from Moody, a suspected drug dealer. Later that evening, Portsmouth Police Detective Beth Shelkey applied for warrants to search Moody's home (1212 Lindsay Avenue) and vehicle (a black BMW). Shelkey's supporting affidavit described the investigation, including the controlled heroin purchase on March 24 as well as other drug transactions:

During the past 6 months, this affiant and other members of the Portsmouth Police Department [Special Investigations Unit] have utilized Confidential Informants who have been up to and inside of 1212 Lindsay Ave Portsmouth, VA and purchased quantities of heroin and cocaine from MOODY. During the investigation controlled purchases have been conducted directly from 1212 Lindsay Ave Portsmouth VA and from a 2004 black in color BMW convertible displaying Virginia tags VLD-9617 reregistered to MOODY.
Within the past 24hrs this affiant and other members of the Portsmouth Police Department utilized a Confidential Informant who placed a telephone call to MOODY asking to purchase heroin from MOODY. MOODY arranged to meet the Confidential Informant in a pre arranged location. During this controlled purchase, MOODY and other co-conspirators (two unidentified black females) were observed leaving from 1212 Lindsay Ave Portsmouth, VA and surveilled traveling to the pre arranged location and selling the Informant heroin. The heroin was recovered by members of the Portsmouth Police Department Special investigations Unit, field tested and resulted positive for heroin.

J.A. 446. A state magistrate issued the warrants that same day. The resulting searches uncovered four firearms, drugs, drug paraphernalia, and thousands of dollars in cash. Moody was ultimately indicted by a federal grand jury on multiple counts of drug possession ...


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