USA v. Filoialii

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KIRT SAINILA FILOIALII,
Defendant.
Case No. 3:21-cr-00052-JMK
ORDER ADOPTING REPORT AND
RECOMMENDATION
Before the Court at Docket 31 is Defendant’s Motion to Suppress (the
“Motion”). 	The Motion was referred to the Honorable Magistrate Judge Matthew M.
Scoble. 	At 	Docket 	71, 	Magistrate 	Judge 	Scoble 	issued 	his 	Final 	Report 	and
Recommendation, in which he recommended that the Motion be denied. Defendant filed
objections at Docket 72. The Government did not respond.
The matter now is before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”1 	A court is to “make a de
novo determination of those portions of the [magistrate judge’s] report or specified
1 28 U.S.C. § 636(b)(1)(C).
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proposed findings or recommendations to which objection is made.”2 But as to those topics
on which no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)]
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.”3
Defendant raises three objections. The Court has considered the objections
on de novo review and finds each to be without merit.
I. 	Defendant’s Objection Re: Concession of Probable Cause
Defendant objects to two statements that imply that Defendant conceded
there was probable cause for his arrest. The Initial Report and Recommendation contained
the sentence: “This Court, after careful consideration, agrees with Filoialii that there was
probable cause to arrest him.”4 Defendant objected at Docket 69, Magistrate Judge Scoble
accepted the well-taken objection, and this sentence was removed from the Final Report
and Recommendation.5 This specific objection is moot.
Defendant further objects that the Final Report and Recommendation states
that “Mr. Filoialii conceded that similarly-situated victims of domestic violence generally
give rise to ‘probable cause to make an arrest’ when they proffer similar statements.”6
2 Id.
3 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v.
Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”).
4 Docket 64 at 20.
5 Docket 71 at 27.
6 Id. at 20.
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Review of the transcript of the Oral Argument held on April 1, 2022, provides that Defense
Counsel stated, in relevant part:
I think what the text message exchange calls into
question and you reviewed them again this morning, is whether
Mr. Filoialii was the perpetrator, whether he was the person
who caused those injuries.
You know, again, I would concede and I think a lot of,
you know, Mr. -- the cases Mr. Tran cites go to this kind of
issue. I mean, typically if -- without these -- without this text
message exchange, she’s in there with injuries and she gives a
statement. It’s often probable cause to make an arrest. I think
this text message exchange in the context of the severity of her
assault allegations put things in a little bit of a different light.7
The Court agrees that Defendant did not cede the probable cause argument in the context
of this specific set of factual circumstances. 	However, the Court also agrees with
Magistrate Judge Scoble’s characterization of the general concession regarding other non-
specific aspects of domestic violence investigations.
The Court does not find either of the contested statements to be error.
II. 	Defendant’s Objection to the Finding of Probable Cause
Defendant objects to the finding that probable cause existed for his arrest on
four separate, but interrelated grounds.8 The core of this objection requests this Court to
isolate a series of affectionate texts messages sent between D.T. and the Defendant as
7 Docket 53 at 18–19.
8 Docket 72 at 4–7.
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countervailing to Magistrate Judge Scoble’s finding of probable cause. However, probable
cause is not determined by isolated facts, but rather the totality of the circumstances.9
While extensively summarized by the parties, the Court finds it necessary to
re-summarize the text messages at issue for clarity in its analysis. 	The messages begin
when D.T. informs Defendant her arm is broken and requires surgery.10 She also expresses
wanting Defendant to visit her in the hospital, but not with her mother present, because “kc
mentioned you[r] name and I didn’t want my mom’ [put] the 2 together.”11 	Defendant
accuses D.T. of “snitching” and if she “told that rat fuck that’s pretty telling on me because
you know he’s gonna call the cops again.”12 	She denies telling “kc,” but Defendant
demands “Why did you tell him[?]”13 In response, she consoles him that she hasn’t “this
time” and that she “didn’t know [kc] was like that.”14 	Defendant responds “This time
huh[.] Have you talked to him today[?]”; to which D.T. answers, “No[.] Haven’t talked
to nobody, and Defendant instructs “I told you about that bitch shit[.]”15 	D.T. responds
with declarations of loyalty and “your my everything.”16
9 Illinois v. Gates, 462 U.S. 213, 232 (1983); United States v. Noster, 590 F.3d 624, 629–
30 (9th Cir. 2009) ([P] probable cause exists where under the totality of the circumstances known
to the officer, a prudent person would have concluded that there was a fair probability that the
suspect had committed or was committing a crime.).
10 Docket 31-2 at 1.
11 Id. at 2.
12 Id. at 3.
13 Id. at 4.
14 Id.
15 Id. at 5.
16 Id. at 5–7.
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Approximately four hours later, Defendant inquires if D.T. is still at the
hospital.17 Defendant and D.T express loneliness and the desire to be together, along with
a plea from D.T. that “we got to be better than this.”18 She asks Defendant to call her and
when he does not, ninety minutes later, she says she loves him and again asks him to call
her.19 	Defendant texts “Your acting weird”; and she questions what “kind of support is
that.”20 	He responds “What I’m on my way[.] 	What are you talking about[?]” and she
requests a soda and gives him directions to her hospital room.21 	It is these specific
messages exchanged between 12:14 AM and 3:20 AM that Defendant requests the Court
to reassess.
After Defendant does not arrive at the hospital or answer her seven text
messages, D.T. communicates that she is leaving the relationship.22 Five hours and thirty
minutes later, Defendant responds, “Just woke up w[here] y[ou] a[t]” and “I passed out call
me.”23 	When Defendant does not receive a response he texts, “Hey what’s up.” 	Thirty
minutes later, Defendant texts “I hope your being honest”; and “I hope you know what
your saying because that was it. Have a nice life.”24 D.T. tells the Defendant not to talk
to her and “I can’t talk to no one who can’t be there and the ones who caused it[.] 	I’m
dead-ass serious just don’t ever talk to me[.] I called oh boy beat me up anyway[.]”25 D.T.
17 Id. at 9.
18 Id. at 9–11.
19 Id. at 11.
20 Id. at 11–12.
21 Id. at 12.
22 Id. at 13.
23 Id.
24 Id.
25 Id. at 13–14.
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and Defendant engage in a series of texts calling each other variations of “bitch,” and
Defendant ending the exchange with “Eat shit and die bitch[.]”26 	Approximately three
hours later, Defendant texts “Ok I got you[.]” 	D.T. responds “I’m reporting g u”;
Defendant states “Go ahead you rat fuck”; and D.T. answers “Byep[,] Yep[,] You’re
done[.]”27 Three hours and thirty minutes later, D.T. reengages in texting telling Defendant
that she is calling law enforcement, “I’m sorry for what you forcing me to do,” and that
she is making a report. 	The last message of the exchange is from D.T. that simply says
“Sorry[.]”28 	Officers arrived at the hospital approximately ten minutes after the last text
message.29
Magistrate 	Judge 	Scoble 	found 	sufficient 	probable 	caused 	based 	on
(1) D.T.’s admission to the hospital for her severe injuries; (2) D.T.’s two interviews;
(3) observations made by two separate law enforcement teams; (4) D.T.’s identification of
Defendant and details of the events sufficient for a reasonable person to believe Defendant
has committed both crimes; (5) D.T.’s demeanor; (6) the verification by law enforcement
about the consistency and details of D.T.’s separate interviews; (7) law enforcement’s
independent computer searches that verified Defendant’s name, physical description,
vehicle registration, and address; and lastly, (8) D.T.’s severe injuries that correspond to
26 Id. at 16–17.
27 Id. at 18.
28 Id.
29 Dockets 38-1, 38-2.
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her account that are so obvious as to be apparent to an untrained observer.30 The finding
of probable cause did not incorporate the text messages—either in whole, or in part.
Defendant asserts that the messages created a duty for officers to further
investigate the text message exchange.31 	The Court finds Defendant’s reliance on
Merriman and Arpin32 unpersuasive due to the abundance of evidence in support of
probable cause. Merriman and Arpin articulate circumstances where specific facts put into
question whether an alleged crime occurred.33 	Those circumstances are vastly different
than in the instant case. 	Here, two separate law enforcement teams encounter D.T. with
observable and undeniable injuries, consistent with and in her account, and independently
investigate and corroborate the alleged identifying details of Defendant. 	The Court is
unpersuaded that the affectionate text messages isolated, or the text messages taken
together, create a definitive inconsistency in D.T.’s allegations. 	The Court concurs with
Magistrate Judge Scoble’s finding that D.T.’s messages of affection did not call into
question the accuracy of D.T.’s report, nor trigger an additional duty to investigate.
Defendant asserts that the messages of affection tended to negate probable
cause.34 	Defendant’s objection asks the Court to sever these specific messages from the
30 Docket 71 at 20.
31 Docket 72 at 4–5.
32 Defendant relies on Merriman v. Walton, 856 F.2d 1333, 1335 (9th Cir. 1988), to
advance the position that evidence that calls into question the accuracy of a reported crime creates
a duty for law enforcement to investigate further before executing an arrest. 32 Defendant further
relies on the rule from Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 925 (9th
Cir. 2001), that in “establishing probable cause, officers may not solely rely on the claim of a
citizen witness that he was a victim of a crime, but must independently investigate the basis of the
witness’ knowledge or interview other witnesses.” Docket 72 at 4.
33 See Merriman, 856 F.2d 1333; Arpin, 261 F.3d 912.
34 Docket 72 at 5–6.
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rest of the text thread to support a theory of an alternative perpetrator.35 The messages of
affection express complicated emotions—loneliness, fear, desire, and hope. However, they
cannot be divorced from the actual context of the thread. The Court agrees with the Final
Report 	and 	Recommendation 	that 	in 	the 	text 	messages 	Defendant 	repeatedly 	and
aggressively 	discourages 	D.T. 	from 	speaking 	to 	anyone 	who 	may 	involve 	law
enforcement.36 The Court agrees that the content, form, and context of the text messages
include threats and attempts to intimidate.37 The Court notes that Defendant never denies
D.T.’s statements that implicate him as the perpetrator of her assault.38 The Court concurs
with Magistrate Judge Scoble’s finding that the text messages, taken as a whole, support
probable cause.
Defendant asserts that the text messages in contrast to D.T.’s allegations do
not demonstrate common relationship dynamics present in domestic violence and are
“impossible to reconcile.”39 	The text messages are clear on their face as evidence of a
volatile and emotionally complicated relationship. The Court concurs with the generalized
finding that these messages are consistent with relationship dynamics commonly found
undergirding domestic violence crimes.40
Lastly, Defendant asserts that Magistrate Judge Scoble overreads the Ninth
Circuit’s decision in Peng v. Mei Chin Penghu,41 in support of exigent circumstances.
35 Id. at 6–7.
36 Docket 71 at 24.
37 Id.
38 Docket 31-2 at 9–12.
39 Docket 72 at 8, see also id. at 7.
40 Docket 71 at 25.
41 335 F.3d 970 (9th Cir. 2003).
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Peng held “the presence of a factual dispute regarding a victim’s complaint at the scene of
an alleged domestic disturbance does not defeat probable cause if: 	(1) the victim’s
statements are sufficiently definite to establish that a crime has been committed; and (2)
the victim’s complaint is corroborated by either the surrounding circumstances or other
witnesses.”42 	Here, Defendant successfully distinguishes Peng by noting that D.T.
reported to law enforcement days after the incident concluded, in the hospital, without
Defendant present. 	However, Peng’s holding remains applicable. 	Officers interviewed
D.T., who articulated alleged specific violent acts by the Defendant. D.T. made her report
from a hospital room, with profound, observable injuries that corresponded to her
allegations, in a post-surgery setting. Further, D.T. exhibited demeanor and expressed her
fear of further violence against her or her mother. The Court agrees with Magistrate Judge
Scoble that law enforcement acted with appropriate haste consistent with Merriman, Arpin,
and Peng.
The Court does not find error in the Magistrate Judge’s finding of probable
cause for arrest.
III. 	Defendant’s Objection Re: Search Warrant Application
Defendant objects to the finding that the omission of the text messages,
summarized and quoted above, from the search warrant application was immaterial and did
not support a Franks hearing. 	Franks v. Delaware permits a defendant to contest the
validity of the search warrant.43 Using a two-prong analysis, the defendant must make a
42 Peng v. Mei Chin Penghu, 335 F.3d 970, 979 (9th Cir. 2003).
43 Franks v. Delaware, 438 U.S. 154 (1978).
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“substantial preliminary showing” of (1) a false or misleading statement or omission by
the warrant affiant made knowingly, intentionally, or with reckless disregard; and (2) that
the statement or omission was material, or necessary, to finding probable cause.44
Magistrate Judge Scoble found that Defendant failed to meet the first prong
of Franks. The Court agrees. The text messages do not alter the course of the investigation,
nor present a discrepancy in the alleged facts. 	The messages demonstrate a volatile
relationship and, as evaluated above, support probable cause. The affiant’s omission of the
text messages lacks the required reckless disregard and the function of being false or
misleading.
Further, Magistrate Judge Scoble found the affidavit contained information
that law enforcement officers: (1) dispatched to the hospital for an alleged kidnapping and
assault; (2) conducted two interviews of D.T.; 3) observed her injuries; (4) detailed the
brevity of Defendant and D.T.’s relationship, her difficulty with Defendant’s last name and
precise address, and her description of his physical features; (5) described Defendant’s
vehicle registered in his name; and (6) articulated the details of Defendant’s arrest.45 Even
if Defendant had met the first prong of Franks, the Court concurs with that the omission of
the text messages were not material, because they are unnecessary for the finding of
probable cause.
44 Id. at 155–56; United States v. Norris, 942 F.3d 902, 909–10 (9th Cir. 2019).
45 Docket 71 at 26.
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The Court does not find error in the Magistrate Judge’s findings in applying
Franks v. Delaware or finding probable cause as to search warrants 3AN-21-0153SW,
3AN-21-01514SW, and 3AN-21- 01515SW.
IV. 	Conclusion
Magistrate Judge Scoble recommended that Defendant’s Motion to Suppress
at Docket 31 should be denied. 	Accordingly, the Court adopts the Final Report and
Recommendation at Docket 71. The Motion to Suppress at Docket 31 is DENIED.
IT IS SO ORDERED this 24th day of January, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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