United States of America v. Michael Clark

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1403
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL C LARK,
Defendant-Appellant.
____________________
Appeal from the United States District Court for
the Western District of Wisconsin.
No. 3:17-cr-00053-jdp-1 — James D. Peterson, Chief Judge.
____________________
A RGUED A PRIL 3, 2025 — DECIDED A PRIL 9, 2025
____________________
Before HAMILTON , BRENNAN , and S CUDDER , Circuit Judges.
S CUDDER , Circuit Judge. This case returns after we re-
manded for a Franks hearing on Michael Clark’s challenge to
an affidavit supporting an application for a warrant to search
a hotel room for drugs. Clark appeals a second time, contest-
ing the district court’s findings and, by extension, the denial
of his motion to suppress following the Franks hearing. Seeing
no error, we affirm.

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2 No. 24-1403
I
A
A federal jury convicted Michael Clark of possessing a
controlled substance in violation of 21 U.S.C. § 841(a)(1) based
on evidence obtained from a search of his hotel room in Supe-
rior, Wisconsin. Our prior opinion explained the facts leading
to the search and the government’s evidence at trial. See
United States v. Clark, 935 F.3d 558 (7th Cir. 2019).
In his first appeal, Clark challenged the district court’s de-
nial of his motion to suppress the evidence found in the hotel
room. He claimed that the police investigator who applied for
the search warrant, Todd Maas, acted with reckless disregard
for the truth when he omitted damaging credibility infor-
mation about the confidential informant who tipped off police
to Clark’s activities at the hotel in violation of Franks v. Dela-
ware, 438 U.S. 154 (1978). We concluded that Clark made a suf-
ficient showing for a Franks hearing, where the district court
could evaluate Maas’s explanation for the omission and as-
sess his credibility. See Clark, 935 F.3d at 567.
Based on the testimony offered at the Franks hearing, a
magistrate judge found Maas to be a credible witness who did
not purposely or recklessly omit the damaging information
about the confidential informant’s credibility. The district
court adopted the magistrate’s recommendation, denied
Clark’s motion to suppress, and reinstated the judgment of
conviction.
Clark now appeals.

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No. 24-1403 3
B
We review a district court’s factual findings supporting
the denial of a motion to suppress for clear error. See United
States v. Glover, 755 F.3d 811, 815 (7th Cir. 2014).
This time around Clark contends that the district court
erred when it found that Maas did not act with “deliberate or
reckless disregard for the truth” in omitting adverse credibil-
ity information about the confidential informant from his ap-
plication for a search warrant. United States v. Williams, 718
F.3d 644, 650 (7th Cir. 2013). But Clark’s position collides with
the clear error standard governing our review. For Clark to
prevail, we would have to “substitute our judgment for that
of the district court,” which found Maas to be a credible and
non-deceptive witness—a conclusion for which we see ample
support in the record. United States v. Sands, 815 F.3d 1057,
1061 (7th Cir. 2015).
The magistrate judge heard Maas’s testimony and consid-
ered his explanation for omitting the information adverse to
the confidential informant’s credibility. Maas explained that,
at the time he applied for the warrant, it was not department
policy to include such information in a search warrant appli-
cation. Though we previously found this policy to be ill-ad-
vised (and are grateful to hear that it has since changed), we
see no basis to set aside the district court’s ultimate finding
that Maas provided a credible explanation belying Clark’s ac-
cusation that he acted deliberately or recklessly with intent to
deceive the state court issuing judge. See Sands, 815 F.3d at
1061 (explaining that a district court’s credibility determina-
tion is clearly erroneous only if it is “completely without

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4 No. 24-1403
foundation” (quoting United States v. Freeman, 691 F.3d 893,
899 (7th Cir. 2012))).
II
In closing, we pause to address what we see as a troubling
trend in our court: the missing reply brief.
All too often a party files a notice of appeal, pays the filing
fee, and submits an opening brief, only to go radio silent when
the reply brief comes due. To be sure, reply briefs—unlike
opening and response briefs—are not required and there may
be instances where they prove unnecessary, say, for example,
when an opening brief anticipates and addresses all points
later made in an opposition brief or perhaps where an oppo-
sition brief concedes error. See Fed. R. App. P. 28(c).
But not required is a far cry from unnecessary or unhelp-
ful—at least in the mine-run of typical appeals in our court. A
reply brief is a party’s opportunity to respond to material
points pressed by an adversary and to put the reply within
the framework (legal or factual) of the opening brief. To forgo
a reply brief and remain silent to an adversary’s most signifi-
cant points is to leave a substantial opportunity on the cut-
ting-room floor.
Briefing shortcomings affect courts too. While oral argu-
ment is important, it often comprises only a small percentage
of the time judges spend on an appeal. Most of our time is
spent reading briefs, reviewing the record, case law, statutes,
and discussing the case with our law clerks. In a meaningful
number of cases, we will read an opening brief (the blue brief
as we often call it), see a substantial response in an opposition
brief (the red-covered brief), and then look to a reply brief to
see what the appellant has to say about the opposition point.

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No. 24-1403 5
Finding no grey brief—an absence of any reply whatsoever—
often sends a message, and the message is not a good one. It
signals that counsel may view the appeal as lacking in merit
or otherwise unworthy of their full time and attention, which
can lead a judge to wonder: why file the appeal in the first
place? Sound briefing matters.
No doubt many different factors and perspectives inform
briefing strategies. And it is not for us to pinpoint the range
of reasons explaining why we see appeals without reply
briefs. The point of our observations is more limited—to urge
counsel to recognize the importance of the briefing process
and the significant role a tailored, efficient, and well-pre-
sented reply brief can play in an appeal. Leaving the last word
unsaid seems unwise in most instances.
Take this case as an example. Clark’s counsel submitted an
opening brief that urged us to find that Investigator Maas’s
omission of credibility information about the confidential in-
formant was at least reckless, material, and warranting sup-
pression of the drugs found in the hotel room. The govern-
ment responded, raising a new argument defending the dis-
trict court’s judgment which Clark did not anticipate in his
opening brief, and, predictably, by emphasizing the deferen-
tial standard controlling our review of the district court’s
findings. Clark then filed no reply, leaving us with the im-
pression that he had given up on the appeal or somehow
sought to salvage his position during oral argument. Either
way, we were left wondering.
With this closing observation, we AFFIRM.

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