Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^** 

Pursuant to plea agreements, defendants/appellants Angel Cuesta Redondo, Giorgio A. LaFranchi and Barbara June Mathews entered guilty pleas, reserving the right to appeal the district court's denial of their motion to suppress evidence. Redondo pleaded guilty to conspiring to make counterfeit Federal Reserve notes. LaFranchi pleaded guilty to making, and Mathews pleaded guilty to possessing, counterfeit Federal Reserve notes. The three appeals have been consolidated. We have jurisdiction pursuant to Fed. R. Crim. P. 11(a) (2) and 28 U.S.C. § 1291. We affirm.

ANALYSIS

United States Secret Service agents executed search warrants for the residence of Barbara June Mathews, the apartment of Giorgio A. LaFranchi, and LaFranchi's 1985 Chevrolet Blazer vehicle. Mathews, LaFranchi and Redondo were arrested at Mathews' residence when the search warrant for that residence was executed. The agents seized a printing press, reams of 100% rag paper, metal plates, negatives of $20, $50 and $100 Federal Reserve notes, and sheets of paper bearing impressions, and partial impressions, of Federal Reserve notes in denominations of $20, $50 and $100.

The warrants were based on an affidavit prepared by Secret Service agent Ralph Curtis, Jr. The affidavit contained a statement that an agent who had observed Mathews' home the day before the search "clearly and positively" saw U.S. currency images on white paper that LaFranchi held up to inspect. In their attack on the warrants, and the supporting affidavit, the appellants filed the joint affidavit of attorneys Daniel A. Bacon, James E. Wasson and Barry F. Nix and defense investigator Eldon Lollar. This affidavit states that the affiants attempted to duplicate the observations of the agent who allegedly viewed the Mathews residence and saw LaFranchi holding up the paper. The affiants allegedly duplicated the conditions of the viewing agent but were unable to identify $20 bills taped on a piece of white paper as being Federal Reserve notes. Thus, the affiants asserted that they believed the agent's challenged observations could not have been made and that the warrant affidavit statement regarding the agent's observations was intentionally false. On this basis the appellants contend the district court erred in denying them a Franks hearing. We disagree.

A defendant is entitled to a Franks hearing if (1) the defendant makes a substantial preliminary showing that a false statement was included in a search warrant affidavit either intentionally or with reckless disregard for the truth and (2) the false statement is necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v. Burnes, 816 F.2d 1354, 1357 (9th Cir. 1987). However, if, when the challenged statement is set aside, the affidavit is sufficient to support a finding of probable cause, no hearing is required. Franks, 438 U.S. at 171-72; Burnes, 816 F.2d at 1357.

Here, the affidavit is sufficient even setting aside the challenged statement. The affiant, Secret Service agent Ralph Curtis, Jr., had investigated numerous counterfeiting cases over a twelve-year period. The affidavit recited that a Zellerbach Paper Company employee in Santa Maria, California, notified the Secret Service that a Rick Rontal ordered 40 reams of 100% rag bond paper, a type of paper used in making counterfeit U.S. currency.¹  Rontal told the Zellerbach employee that he was going to print certificates and diplomas in Fresno. Zellerbach had a store in Fresno where the paper could have been bought. Mathews said she thought the paper could be bought for less in Santa Maria, but she did not appear to know the prices at the Fresno store. Although the employee told Rontal that less expensive paper would be satisfactory for the stated use, Rontal insisted on 100% rag bond paper. A few days later, Rontal, Mathews and LaFranchi picked up the order. LaFranchi and Mathews took the paper outside the Zellerbach store and held it up to the light. Mathews paid $679.67 cash for the paper. The paper was then loaded into a Chevrolet Blazer. Agents kept the Blazer under continuous surveillance and observed something being unloaded from it and placed into the garage at Mathews' residence. A few days later, an agent overheard a lunch conversation among LaFranchi and three other individuals that they were going to become rich from a joint venture. The four passed among themselves a manila envelope which appeared to contain white paper. The day before the search warrant was executed at the Mathews residence, LaFranchi, Mathews and an unknown man were there. They constantly burned trash. An apparent lookout was posted. Several times LaFranchi left the garage area and held white paper up to the sun to inspect it. LaFranchi was observed apparently washing his hands of a dark substance resembling ink.

We consider the totality of the circumstances in determining whether a warrant affidavit establishes probable cause. Illinois v. Gates, 462 U.S. 213, 230-31 (1983); Burnes, 816 F.2d at 1357. An affidavit need only demonstrate a probability, not a prima facie case, of criminal activity. Gates, 462 U.S. at 235 (citing Spinelli v. United States, 393 U.S. 410, 419 (1969)); see United States v. Castillo, 866 F.2d 1071, 1077 (9th Cir. 1988). "In doubtful cases, preference should be given to the validity of the warrant." United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). Considering the totality of the circumstances, even with the challenged statement excluded, the affidavit establishes probable cause to support issuance of the search warrants. See Burnes, 816 F.2d at 1357.

AFFIRMED.