United States v. Levasseur

• Decision Date: 07 October 1985
• Docket Number: No. 85 Crim 143.,85 Crim 143.
• Citation: 619 F. Supp. 775
• Parties: UNITED STATES of America, Plaintiff, v. Raymond Luc LEVASSEUR, Jaan Karl Laaman, Thomas William Manning, Richard Charles Williams, Carol Ann Manning, Patricia Gros and Barbara Curzi, Defendants.
• Court: U.S. District Court — Eastern District of New York

619 F. Supp. 775

UNITED STATES of America, Plaintiff, v. Raymond Luc LEVASSEUR, Jaan Karl Laaman, Thomas William Manning, Richard Charles Williams, Carol Ann Manning, Patricia Gros and Barbara Curzi, Defendants.

No. 85 Crim 143.

United States District Court, E.D. New York.

October 7, 1985.

COPYRIGHT MATERIAL OMITTED

John Gallagher, Asst. U.S. Atty., E.D. N.Y., Brooklyn, N.Y., for plaintiff.

William M. Kunstler, New York City, for Thomas William Manning.

Susan Tipograph, Flood, Tipograph & Holmes, New York City, for Patricia Gros.

Margaret Ratner, Center for Constitutional Rights, New York City, for Barbara Curzi.

Elizabeth Fink, Brooklyn, N.Y., for Carol Ann Manning.

Lynne Stewart, New York City, for Richard Charles Williams.

Jesse Berman, New York City, for Jaan Karl Laaman.

Robert Boyle, Brooklyn, N.Y., Legal Asst. to Levasseur.

Raymond Luc Levasseur, Metropolitan Correctional Facility, New York City, pro se.

MEMORANDUM AND ORDER

GLASSER, District Judge:

The defendants have moved this Court pursuant to Rule 12(b)(3) of the Fed.R. Crim.P. for an order suppressing physical evidence seized pursuant to a search warrant. The defendants contend that the affidavit of an F.B.I. Agent based upon which the search warrant was granted contained statements which were knowingly and intentionally false or made by him with a reckless disregard for the truth and that a hearing to test their contentions is required by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The defendants also contend that the affidavit failed to establish any connection between the items sought to be seized and the places to be searched. And finally, they contend that the information relied upon in the affidavit was stale. The defendants also contend that notebooks which were seized during the searches and which the government asserts contain incriminating information in code, were immune from seizure under the Fourth Amendment.

Franks v. Delaware, supra, decided that if a defendant makes a substantial preliminary showing that (1) the affidavit upon which a search warrant was granted contained false statements made knowingly and intentionally or with a reckless disregard for the truth and (2) if the allegedly false statement is necessary for the finding of probable cause, then the Fourth Amendment requires that a hearing be held at the request of the defendant. If the allegation of perjury or reckless disregard is established at the hearing by the defendant by a preponderance of the evidence and with the false material set aside, the remainder of the affidavit is insufficient to establish probable cause then the search warrant must be voided and the fruits of the search excluded as if probable cause was lacking on the face of the affidavit. The Court was careful to exclude from the embrace of the rule statements which were the result of police negligence in checking or recording facts relevant to a probable cause determination to avoid misuse of the hearing for purposes of discovery or obstruction. The Court was also careful to explain what was meant by a "substantial preliminary showing." It said, at p. 171, 98 S.Ct. at p. 2684:

There is ... a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any non-governmental informant.

If all those requirements are met and if setting aside the material that is the subject of the alleged falsity or reckless disregard there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Only if the remaining content is insufficient, is the defendant entitled to a hearing.

With these principles in mind, I turn to the first prong of Franks which is — is there a substantial preliminary showing that the affiant made false statements knowingly and intentionally or with a reckless disregard for the truth. The statements alleged to be made intentionally with knowledge of falsity or with reckless disregard for the truth will be considered in the order in which they are set out in the affidavit of the defendant Levasseur, in support of this motion.

The affidavit in question was made by FBI Agent Leonard C. Cross on November 5, 1984. The defendants were arrested on November 4, 1984. Agent Cross was assigned in February 1984 to coordinate an extensive investigation which had been ongoing for many years into the alleged terrorist activities of the defendants. His affidavit was based upon his participation in the investigation, upon his familiarity with reports generated in the course of his investigation and upon his experience in such investigations. Mention in the discussion which follows to "Aceto" refers to Joseph Aceto; "Topsfield" refers to a transcript of an interview of Aceto by detectives of the Massachusetts State Police and FBI Agent Quigley in the Massachusetts State Police Barracks in Topsfield, Massachusetts on July 4-5, 1976; "Picariello" refers to Richard Picariello; "Carlson" refers to the transcript of the trial in United States v. Carlson, Cr. No. 76-26 (D.Maine 1976); "SMJJU" refers to the Sam Melville — Jonathan Jackson Unit.

A. The Suffolk County Courthouse Bombing

1. In paragraph 23 of his affidavit Cross states that "After the bombing, Aceto spoke with Levasseur in an effort to obtain a portion of the blasting accessories which had previously been stockpiled by the original group. During this conversation Levasseur said, `we used twelve sticks of dynamite.'" That statement is alleged to be falsely or recklessly made because Topsfield (pp. 2-19, 2-44) indicates that Aceto was told by Picariello that "they used twelve sticks;" that Levasseur never stated to him that they committed that crime (p. 2-45).

2. In that same paragraph, Cross attributes to Aceto a statement made to him by Levasseur in Calais, Maine, that the Suffolk County Courthouse would be an excellent bombing target after reading that probation records were stored there because the destruction of those records would prevent a reconstruction of the background of the persons whose records they were.

That statement is alleged to be false in that Aceto, in sworn testimony in Carlson said that he had neither heard nor mentioned the Suffolk County Courthouse before he heard about the bombing of it on the news.

Although there is no reference in the Cross affidavit to the Topsfield interview, it may or may not be fair to infer that much of the information in that affidavit came from that interview. There is nothing before the Court to indicate whether the information in the affidavit was derived from a reading of Topsfield by Agent Cross himself or whether the contents of Topsfield was conveyed to Cross by someone else who either read it or was present at the interview. There is also nothing before the Court to indicate when Cross read Topsfield (if at all) or when its contents were conveyed to him. It should be noted that a span of more than eight years separates Topsfield from the Cross Affidavit.

In any event, I find more than enough in Topsfield to minimize the significance of the first discrepancy seized upon by the defendants.

Immediately preceding the sentence in Topsfield reflecting that Picariello told Aceto that "They used twelve sticks," Picariello is said to have told Aceto, "They (Levasseur and Gros) told me to tell you if you ask that (the bombing) was done by the Jonathan-Jackson-Melville Unit" (Tr. p. 2-44).

There are many references to the SMJJU in Topsfield. For example, on page 81, Aceto identified Levasseur as the leader of the SMJJU, and on page 2-59 identified the members of the SMJJU as being Levasseur, Gros, Thomas and Carol Manning and three or four others.

On page 82 of Topsfield, Aceto states that Raymond Levasseur was the man who placed the bomb at the Courthouse in Boston and that Pat Gros made the threats, the phone calls.

Viewing the statement attacked in the context of the Topsfield transcript in its entirety, one can only say that it is a trifle and does not demonstrate that the affidavit statement was deliberately false or recklessly made in that respect. Affidavits are not read "with the same microscopic intensity as municipal bond counsel would a bond indenture." United States v. Pond, 523 F.2d 210, 214 (2d Cir.1975).

As to the second inaccuracy of which mention was already made, whether Cross' failure to refer to that excerpt from the Carlson trial which was some nine years prior to his affidavit was one that was knowing and intentional or reckless would depend upon Cross' familiarity with the entirety of the Carlson transcript and if he had any familiarity with it, whether he had any recall of that excerpt when he made his affidavit and what he understood the excerpt to convey.

B. The Red Star North Brigade

In paragraph 11 of his affidavit, Cross attributes to Aceto the information that during 1974 Levasseur, Gros and Manning formed the Red Star North Collective, a bookstore in Portland, Maine and that the same persons were members of the Red Star North Brigade. In paragraph 12, Cross states that Aceto agreed to join a group of which Levasseur and Manning were the leaders, which Aceto ...