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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.


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OPINION
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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.


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OPINION
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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.