US v. Joeann Wharton

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cr-00043-ELH-1. [999952244]. [15-4103]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4103

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOEANN WHARTON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Ellen L. Hollander, District Judge.
(1:13-cr-00043-ELH-1)

Argued:

September 20, 2016

Decided:

October 21, 2016

Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Harris joined.

ARGUED: Julie L.B. Stelzig, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.
Paul Nitze,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Judson T.
Mihok, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
Joeann
making

a

connection

Wharton
false
with

appeals

statement,
her

her

convictions

theft,

unlawful

and

receipt

of

conspiracy,

embezzlement,

of

government

all

in

benefits.

She principally contends that the district court should have
suppressed evidence found at her house. 1

Wharton maintains that,

in the affidavit supporting the search warrant for the house,
the

affiant

recklessly

omitted

material,

exculpatory

facts.

Because the inclusion of the omitted information would not have
defeated probable cause for the search, that information was not
material.

Accordingly, we affirm the judgment of the district

court.

1

Wharton also contends that the superseding indictment did
not provide her with adequate notice of the crimes charged and
that the differences between the superseding indictment and the
Government’s proof at trial constituted a prejudicial variance
requiring reversal.
As the district court held, neither
argument is persuasive.
The superseding indictment, like that
we held sufficient in United States v. Perry, 757 F.3d 166, 172
(4th Cir. 2014), tracked the statutory language and set forth
specific details about the nature of the charges; for instance,
the superseding indictment informed Wharton of the kind and
source of the funds she assertedly embezzled and the time during
which the alleged offenses took place.
As for the divergence
between the superseding indictment and the evidence at trial,
the Government proved a narrower set of facts at trial than it
alleged in the superseding indictment, but the superseding
indictment alleged everything the Government proved at trial.
There was no reversible error.
See United States v.
Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013).
2

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I.
After

their

mother’s

death

in

2002,

Wharton’s

two

granddaughters, Chaqueira Wharton and Essence Wharton, moved in
with her.

Wharton applied for, and received, Social Security

survivors’ benefits on their behalf, obligating her to spend
those

funds

for

learned that

the

their
girls

care.
were

In
not

July

2012,

receiving

the

the

Government

benefits,

and

since 2009 had not even lived with Wharton in her house on
Utrecht

Road

in

Baltimore,

Maryland.

The

Government

then

launched an investigation of Wharton’s use of the survivors’
benefits.

Special

Administration’s

Agent

Office

Mark

of

the

Gray

of

Inspector

the

Social

General

Security

headed

that

investigation.
As part of his investigation, Agent Gray reviewed state and
federal

records

and

interviewed

Wharton’s

two

granddaughters,

Chaqueira Wharton and Essence Wharton, Wharton’s children LaSean
Wharton and Tasha Muriel, Wharton’s husband John Wharton, and
Wharton

herself.

Agent

Gray’s

investigation

uncovered

other

evidence of Wharton engaging in potentially fraudulent activity
involving government benefits.

On January 31, 2013, a federal

grand jury indicted Wharton on two counts of theft of government
property

in

violation

of

18

U.S.C.

§ 1383a(a)(3).

3

§

641

and

42

U.S.C.

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Five months later, on June 27, 2013, the grand jury issued
a sealed superseding indictment, which was unsealed on July 10,
2013.

The superseding indictment charged both Joeann Wharton

and her husband, John Wharton, with multiple counts involving
conspiracy

to

embezzle,

statements

to

while

superseding

the

obtain

embezzlement,

government

and

benefits.

indictment

remained

making
July

On

false
2013,

sealed,

1,

Agent

Gray

sought a search warrant of the Utrecht Road house to obtain
evidence

about

offered

in

John

Wharton.

support

of

In

the

the

search

affidavit

warrant,

Agent

he

set

Gray
forth

substantial evidence of criminal activity by John Wharton and
asserted that John Wharton and Joeann Wharton lived together at
the Utrecht Road house.

Upon consideration of the affidavit, a

magistrate

the

judge

issued

search

warrant.

Agent

Gray

and

another agent executed it the following day, uncovering a number
of documents relevant to the charges against both John Wharton
and Joeann Wharton.
Prior to trial, Joeann Wharton moved to suppress all the
evidence obtained in that search.

She argued that Agent Gray

had recklessly omitted material exculpatory evidence from the
affidavit, namely that John Wharton lived only in the basement
of the house.
Franks

v.

question.

The district court held a hearing pursuant to

Delaware,
After

438
a

U.S.

154

two-day

(1978),

evidentiary
4

to

consider

hearing,

and

the
an

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additional

day

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of

oral

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argument,

the

district

court

largely

denied the suppression motion. 2
A

lengthy

trial

followed

at

which

the

district

court

admitted evidence obtained in the search of the common areas of
the house.

The jury convicted Joeann Wharton of Social Security

fraud in violation of 42 U.S.C. § 1383a(a)(3), and convicted
both Joeann Wharton and John Wharton of conspiracy to embezzle
money from the United States in violation of 18 U.S.C. § 371,
two counts of making false statements to the SSA in violation of
42 U.S.C. § 1383a(a)(2), and two counts of embezzlement from the
United States in violation of 18 U.S.C. § 641.

II.
The
Agent

critical

Gray

information

recklessly

omitted

that

Joeann

from

his

Wharton

affidavit

maintains
were

facts

demonstrating that she and her husband “occupied different parts

2

The district court granted the motion with respect to
Joeann Wharton’s second floor bedroom and ordered that the
documents found there would not be admitted into evidence at her
trial. Although in its appellate brief, the Government contends
that the district court erred in suppressing these documents,
the Government acknowledges that in the district court it “did
not challenge” that decision, and simply asks us to affirm the
judgment of the district court. Brief of Appellee at 17, 26-31,
and 55.
Thus, the Government has waived any challenge to the
order concerning Joeann Wharton’s bedroom, and we do not discuss
it further. We consider the adequacy of Agent Gray’s affidavit
only with respect to the remainder of the house and henceforth
characterize that portion of the house as “the common areas.”
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of the house.”
omission

of

materially

Pg: 6 of 15

Brief of Appellant at 23.
these

false

facts

in

rendered

violation

of

She contends that the

Agent

the

Gray’s

Fourth

affidavit

Amendment.

See

Maryland v. Garrison, 480 U.S. 79, 85 (1987) (“Plainly, if the
officers had known . . . that there were two separate dwelling
units on the third floor of 2036 Park Avenue, they would have
been obligated to exclude respondent’s apartment from the scope
of the requested warrant.”).
The Utrecht Road house occupies three levels:

a basement;

a main first floor; and an upstairs second floor.
floor contains two bedrooms and a bathroom.

The second

The first floor

consists of a kitchen, a living/dining area, and the front door
to the house.
entrance,

a

The basement consists of a bedroom, a separate

half-bath,

a

refrigerator,

and

a

microwave.

An

interior door connects the first floor to the basement.
For

the

most

part,

Agent

Gray’s

ten-page,

twenty-two

paragraph affidavit seeking a warrant to search the Utrecht Road
house for evidence of John Wharton’s criminal activity outlines
the nature of that activity.

Agent Gray also made the following

representations as to the living arrangement within the house:
1)

he

Wharton

and

another

together

interview,

“the

agent
at

the

Whartons

interviewed
Utrecht
stated

John

Road

that

Wharton
house;

they

had

and

2)
been

Joeann

at

this

married

continuously for 43 years, and that they lived together” in the
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house; 3) the Baltimore Gas & Electric Company provides power to
the entire house through an account in John Wharton’s name; 4)
the Dish Network provides television service to the entire house
through an account listing both John Wharton and Joeann Wharton
as authorized users; and 5) Agent Gray knew “from interviews in
June 2013 with Lesean [sic] Wharton and his sister Tasha Muriel
that John and Joeann are currently living” in the house.

Joeann

Wharton did not (and does not) challenge any of these facts.
What she contends is that Agent Gray recklessly omitted from his
affidavit

other

material

information

indicating

that

she

and

John occupied distinct areas of the house.
After considering the evidence the parties produced at the
Franks hearing, the district court found that LaSean Wharton had
told Agent Gray that his parents slept in separate bedrooms but
shared a kitchen and common areas.

The court found that Tasha

Muriel had told Agent Gray that both of her parents lived in the
Utrecht Road house, but John Wharton lived in the basement while
Joeann

Wharton

Muriel,

occupied

although

John

the

upstairs

Wharton

would

floors.

According

occasionally

visit

to
the

kitchen and dining areas, he did so by invitation only, mostly
at family gatherings.

The district court further found that

Wharton’s granddaughters had told Agent Gray that they needed to
knock

on

remained

an

interior

locked,

on

door
the

to

the

rare

basement,

occasions
7

they

which
went

typically
to

their

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grandfather’s part of the house.

Finally, the court found that

some of Agent Gray’s notes and the documents he obtained during
his investigation indicated that Joeann Wharton lived separately
from John Wharton in the house.
that

although

Agent

Gray

The district court concluded

recklessly

omitted

this

information

from his affidavit, because it was not material, its omission
did not violate the Fourth Amendment. 3

3

In so holding, the court relied on the joint cable and
utility bills, the fact that Agent Gray interviewed John Wharton
and Joeann Wharton together in the Utrecht Road house, and their
representations as to a long-standing marriage during that
interview.
The court also relied on two facts Agent Gray did
not include in his affidavit but that Wharton’s evidence at the
Franks hearing established:
(1) Tasha Muriel told Agent Gray
that John Wharton would occasionally cook in the kitchen and had
access to the dining room; and (2) LaSean Wharton told Agent
Gray that John Wharton and Joeann Wharton shared a kitchen and
common areas.
On appeal, the parties strongly dispute whether
the district court properly considered these two pieces of
additional evidence in assessing the materiality of Agent Gray’s
omissions. We have held that “[i]n evaluating whether probable
cause would have existed if the omitted statements had been
included,” a court must “only consider the information actually
presented to the magistrate during the warrant application” by
the Government.
United States v. Lull, 824 F.3d 109, 119 n.3
(4th Cir. 2016) (internal quotation marks omitted). While Lull
precludes a court from relying on extrinsic evidence the
Government offers to bolster an affidavit facing a Franks
challenge, it does not speak to whether a court can consider
extrinsic evidence offered by a defendant.
Given our holding,
we need not resolve that question in this case.

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III.
With these facts in mind, we turn to the legal question
before us -- whether the district court erred in finding that
the omissions in the affidavit were not material, and so denying
Wharton’s
court’s

suppression

ruling

findings

for

on

clear

a

motion.

When

suppression

error

and

considering

motion,

legal

“we

a

district

review

determinations

factual

de

novo.”

United States v. Lewis, 606 F.3d 193, 197 (4th Cir. 2010).
“construe

the

evidence

in

the

light

most

favorable

to

We
the

prevailing party,” here the Government, “and give due weight to
inferences drawn from those facts by resident judges and law
enforcement officers.”
The
issue,

Fourth
but

affirmation,

Id. (internal quotation marks omitted).

Amendment

upon
and

mandates

probable

cause,

particularly

that

“no

Warrants

supported

describing

the

by

amend. IV.
governs

Oath

place

searched, and the persons or things to be seized.”

shall

to

or
be

U.S. Const.

The district court properly recognized that Franks

Wharton’s

challenge. 4

Defendants

may

bring

Franks

challenges both when an affidavit contains a false statement and

4

Franks, and many of the cases applying it, involve
defendants claiming that the district court improperly denied
them an evidentiary hearing to test the integrity of the
affidavit supporting a search warrant.
Of course, because the
district court granted Wharton a Franks hearing, and there is no
challenge to that decision, we do not address that preliminary
question here.
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when the affiant has omitted material facts from the affidavit.
United States v. Lull, 824 F.3d 109, 114 (4th Cir. 2016).

To

establish a Franks violation, a defendant must prove that the
affiant

either

intentionally

or

recklessly

made

a

materially

false statement or that the affiant intentionally or recklessly
omitted material information from the affidavit.

Id.

Thus,

Franks requires proof of both intentionality and materiality.
Id.

We need only discuss the materiality requirement here.
An omission is material if it is “necessary to the [neutral

and

disinterested

magistrate’s]

Franks, 438 U.S. at 156.

finding

of

probable

cause.”

Even if relevant, information is not

material unless “its inclusion in the affidavit would defeat
probable cause.”

See United States v. Colkley, 899 F.2d 297,

301 (4th Cir. 1990).
In assessing materiality, we “insert the facts recklessly
[or intentionally] omitted, and then determine whether or not
the corrected warrant affidavit would establish probable cause.
If the corrected warrant affidavit establishes probable cause,”
there is no Franks violation.

Miller v. Prince George’s Cty.,

475 F.3d 621, 628 (4th Cir. 2007) (internal quotation marks and
citations omitted).

Therefore, for Wharton to succeed on her

Franks challenge, she must demonstrate that the totality of both
the facts Agent Gray provided in his affidavit and the facts
that he omitted do not signal “a fair probability that . . .
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evidence

of

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[John

common areas.

Wharton’s]

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crime

w[ould]

be

found”

in

the

See Illinois v. Gates, 462 U.S. 213, 238 (1983)

(defining the probable cause standard).
In

Lull,

challenge.
omission

we

recently

considered

another

Franks

omission

We held that a law enforcement officer’s reckless

of

facts

reliability

of

a

from

his

affidavit,

confidential

which

informant,

required reversal of Lull’s conviction.

were

undermined

the

material

and

824 F.3d at 118-20.

There, a police officer had executed a search warrant of Lull’s
house and, in doing so, found drugs and weapons the Government
later used against him.

Id. at 113.

In his application for a

search warrant, the officer swore that an undercover informant
had advised him that “Lull was selling quantities of Cocaine,
Marijuana and other illegal drugs from his home address,” and
that

this

informant

from . . . Lull.”

“had

Id.

recently

bought

illegal

drugs

The officer did not disclose, however,

that immediately after completing a controlled buy with Lull,
the informant tried to steal some of the money police had given
him to make the buy.
fundamentally

Id. at 112-13.

undermined

the

We held that this omission

informant’s

invalidating the search warrant.

reliability,

thereby

Id. at 111.

In assessing the materiality of that omission, we noted
that the informant supplied much of the factual basis for the
affidavit.

Id. at 118.

Because the confidential informant was
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unreliable,

we

Pg: 12 of 15

excised

statements from the affidavit.
statements,

nothing

in

the

his

Id.

(otherwise-undisputed)

Without the informant’s

affidavit

“identifie[d]

Lull

specifically as the seller or otherwise connect[ed] him to the
drug

transaction.”

omission material.

Id.

at

119.

Accordingly,

we

held

the

Id. at 120.

Similarly, in United States v. Tate, 524 F.3d 449, 451 (4th
Cir. 2008), we held that a defendant should have received a
Franks hearing when he offered evidence that an affiant police
officer failed to disclose that he had trespassed in searching
the defendant’s trash to obtain evidence of criminal activity.
We explained that the omission was material because “[i]f the
trash investigation was conducted illegally, the facts derived
from

it

would

have

to

be

stricken

from

the

affidavit,”

and

without those facts, “the affidavit would not have supported a
finding of probable cause.”

Id. at 457.

In both Lull and Tate, correcting the affidavit to include
the omitted information undermined the foundational core of the
affidavit.

Here, the inclusion of the omitted information does

not do that.

For in this case, the corrected affidavit still

includes unchallenged information establishing probable cause.
Most critical is Agent Gray’s uncontroverted account in his
affidavit

of

his

joint

interview

Wharton at the Utrecht Road house.
12

of

John

Wharton

and

Joeann

During that interview, John

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and Joeann Wharton stated that they lived together at the house
and had stayed continuously married for forty-three years.

This

account alone easily demonstrates the requisite fair probability
that a search of the common areas of the house would reveal
evidence of John Wharton’s crimes.
Moreover, two other pieces of evidence Agent Gray provided
in his affidavit -- bills for shared cable and electric services
-- buttress that conclusion.

A magistrate judge could conclude

from John Wharton’s monetary contributions to the television and
power

services

services.

for

Indeed,

the

entire

John

house

Wharton’s

that

he

utilized

involvement

with

those
those

accounts, particularly given the fact that the BGE account was
in his name only, indicates continued interaction between John
Wharton and Joeann Wharton, at least to the degree necessary to
manage the utility accounts.

These inferences further support

the view that John Wharton had access to the common areas of the
house.
To be sure, the omitted information Agent Gray learned from
his interviews with the Wharton children and grandchildren, and
documents, some of which suggested two distinct units within the
Utrecht Road house, is relevant to the question of the Whartons’
living arrangements.

But, even considering those facts, the

corrected affidavit still establishes probable cause to search
all the common areas of the house.
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Significantly,

nothing

Pg: 14 of 15

in

the

omitted

information

demonstrated, or even suggested, that John Wharton lacked access
to the common areas of the house.
had

told

bedrooms;

Agent
but

Gray

LaSean

that

his

never

For example, LaSean Wharton
parents

said

that

maintained

John

separate

Wharton

remained

exclusively downstairs or did not enter the common areas.
Gray’s

notes

lend

themselves

to

a

similar

inference;

Agent
to

the

extent they imply a division of the house into two distinct
units, this demonstrates only that John Wharton did not have
access to Joeann Wharton’s bedroom.

And while the statements of

Tasha Muriel, Chaqueira Wharton, and Essence Wharton all provide
evidence of John Wharton’s lack of access to Joeann Wharton’s
bedroom (at least to the best of their knowledge), nothing in
those statements showed that John Wharton did not have access to
the common areas of the house.
Additionally, unlike the officers in Lull and Tate, nothing
Agent

Gray

(whether

omitted

through

casts

doubts

unreliability,

on

the

inherent

illegality,

information in the original affidavit.

validity

etc.)

of

any

Certainly the omitted

information provides more detail to the picture Agent Gray’s
affidavit painted.

However, those omitted facts simply join the

facts

proffered

Agent

circumstances
probable

Gray
a

cause

magistrate
for

the

to

judge

corrected
14

form

the

would

consider

affidavit.

totality
in

And

of

the

assessing
given

the

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merely relevant nature of those additional facts, their omission
does not constitute a Franks violation.
The

only

contemporaneous

evidence

in

the

corrected

affidavit specific to John Wharton’s access to the common areas
of the house indicates that he did have access to those areas.
And nothing Agent Gray omitted from his affidavit discredited
that conclusion.
affidavit

We are satisfied that, even corrected, the

provided

the

magistrate

judge

with

“a

substantial

basis for . . . concluding that probable cause existed” that
John

Wharton

would

utilize

public

areas

evidence of his own criminal activity.
39 (alterations in original).

and

leave

in

them

Gates, 462 U.S. at 238-

Accordingly, the district court

properly held that the omissions were not material and so did
not defeat probable cause.

IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

15