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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH SAMIR ZAKHARI,
Defendant-Appellant. |
No. 22-5328 |
Appeal from the United States District Court for the Western District of Kentucky at Louisville.
No. 3:19-cr-00208—Rebecca Grady Jennings, District Judge.
Argued: April 27, 2023
Decided and Filed: October 23, 2023
Before: KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
_________________________
OPINION
_________________________
WHITE, Circuit Judge. Defendant-Appellant Joseph Zakhari was convicted of
attempting to persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C.
§ 2422(b) (Count 1); attempting to transmit an obscene image to a minor, in violation of
18 U.S.C. § 1470 (Count 2); and attempting to produce child pornography, in violation of
18 U.S.C. § 2251(a) and (e) (Count 3). The district court sentenced him to the applicable
mandatory minimum term of fifteen years in prison. On appeal, Zakhari argues that the court
erroneously denied his motion to suppress his statement to police as obtained in violation of his
right to counsel and his motion to dismiss Count 3 as vindictive. Because the suppression
motion should have been granted and the district court did not sufficiently consider the claim of
prosecutorial vindictiveness, we REVERSE the denial of the motion to suppress, VACATE the
conviction, and REMAND for a new trial and reconsideration of the motion to dismiss. |
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUSSELL DAVIS,
Defendant-Appellant. |
No. 22-3603 |
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:16-cr-00260-1—Christopher A. Boyko, District Judge.
Decided and Filed: October 23, 2023
Before: GILMAN, KETHLEDGE, and MURPHY, Circuit Judges.
_________________________
OPINION
_________________________
MURPHY, Circuit Judge. If a police officer violates the Fourth Amendment by
conducting a search without probable cause, the “exclusionary rule” requires a court to prohibit
the use of any recovered evidence at the defendant’s criminal trial. See generally Mapp v. Ohio,
367 U.S. 643 (1961). In United States v. Leon, 468 U.S. 897 (1984), however, the Supreme
Court held the exclusionary rule typically will not apply if the officer obtained a warrant for this
search—even if the judge who issued the warrant erred in finding that probable cause existed.
See id. at 922. That said, Leon added that the officer cannot rely on the judge’s probable-cause
ruling to avoid the exclusionary rule if the affidavit requesting the warrant was so bare bones that
no reasonable officer could believe that it established probable cause. See id. at 923. This case,
which reaches us for a second time, raises a novel issue under Leon’s framework.
Russell Davis sold fentanyl that caused a deadly overdose. After a thorough
investigation, a detective obtained a warrant from an Ohio magistrate to search Davis’s home in
Lorain, Ohio. In Davis’s first appeal, the government conceded that the detective’s affidavit in
support of this warrant omitted facts showing the required probable-cause “nexus” between
Davis and his home. United States v. Davis, 970 F.3d 650, 666 (6th Cir. 2020). But we
remanded for an evidentiary hearing because the government contended that the detective had
provided additional (unrecorded) oral testimony in front of the magistrate. Id. During this later
federal hearing, the detective stated that he believed he had told the magistrate about the
evidence connecting Davis to the home, but he could not recall any specifics. The district court
held that this general belief sufficed to avoid the “bare-bones” label and thus to trigger Leon’s
exception to the exclusionary rule.
We agree for two basic reasons. First, the detective had uncovered overwhelming
evidence tying Davis to the home. And second, the magistrate (not the detective) bore any blame
for failing to transcribe the detective’s additional oral testimony under state law. We also reject
Davis’s other challenges to the warrant. So we now affirm Davis’s conviction in full. |
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