U.S. v. Cleveland

• Citation: 964 F.Supp. 1073
• Decision Date: 18 April 1997
• Docket Number: Criminal Action No. 96-207.
• Parties: UNITED STATES of America, v. Carl CLEVELAND, et al.
• Court: U.S. District Court — Eastern District of Louisiana

964 F.Supp. 1073

UNITED STATES of America, v. Carl CLEVELAND, et al.

Criminal Action No. 96-207.

United States District Court, E.D. Louisiana.

April 18, 1997.

COPYRIGHT MATERIAL OMITTED

Anthony J. Marabella, Jr., Marabella & Moore, Stephen Bishop Street, Jr., Baton Rouge, LA, for Carl W. Cleveland.

Risley C. Triche, Risley C. Triche & Associates, Napoleonville, LA, Marilyn Michele Fournet, Baton Rouge, LA, for Fred H. Goodson.

James Michael Small, Alexandria, LA, Katherine Wheeler, Steffes & MacMurdo, Baton Rouge, LA, for Maria F. Goodson.

Arthur A. Lemann, III, Arthur A. Lemann & Associates, New Orleans, LA, William R. Campbell, Jr., New Orleans, LA, Michael Seth Fawer, Smith, Jones & Fawer, LLP, Covington, LA, for Benjamin Bura Rayburn, Sr.

Christopher Mar Guidroz, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, George Shaddock, Pascagoula, MS, for Joe H. Morgan.

Dennis R. Bagneris, Waltzer & Associates, New Orleans, LA, Karl J. Koch, Lewis O Unglesby, Unglesby & Koch, Baton Rouge, LA, for Larry S. Bankston.

Ian Hipwell, Baton Rouge, LA, Robert J. Boitmann, U.S. Attorney's Office, New Orleans, LA, for U.S.

Order Denying Defendant Bankston's Motion to Suppress Results of Electronic Surveillance and All Evidence Derived from Such Results and for an Evidentiary Hearing and Denying Defendant Bankston's Motion for Appropriate Relief

VANCE, District Judge.

Before the Court is defendant Bankston's motion to suppress results of electronic surveillance and all evidence derived from such results and for an evidentiary hearing, which has been adopted by defendants Carl Cleveland, Fred Goodson, Maria Goodson, and Joe Morgan and defendant Bankston's motion for appropriate relief, requesting production of a taped meeting between Robert Miller and Terry Dunlevy. For the reasons stated below, both motions are DENIED.

I. Introduction

Defendant Bankston¹ moves this Court to suppress the results of electronic surveillance intended to be introduced by the government at trial, along with all fruits of the results, and requests an evidentiary hearing on the issue. Bankston offers three independent reasons for suppression. First, Bankston charges that the electronic surveillance at issue was obtained through the use of affidavits that contained intentional and/or reckless false statements and material omissions. Second, Bankston maintains that the surveillance was not conducted in accordance with the minimization requirements of 18 U.S.C. § 2518(5). Finally, Bankston alleges that the government used the intercepted communications in an improper manner in violation of 18 U.S.C. § 2517(2). The Court finds no merit in any of these three contentions and finds that defendants are not entitled to an evidentiary hearing. The motion is therefore DENIED for the reasons stated below.

II. Defendant's Suppression Motion Challenging the Truthfulness of the Affidavit in Support of the Surveillance Warrant

A. Franks v. Delaware

Bankston cites eight instances in which he alleges that the affidavits supporting the surveillance in question included either false statements or material omissions, each of which, according to Bankston, negates probable cause. Bankston argues that he is entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that the results of the electronic surveillance, along with any fruits of those results, should be suppressed.

In Franks, the Supreme Court determined that criminal defendants have a limited right under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual statements made in an affidavit supporting a search warrant, subsequent to the ex parte issuance of the warrant. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. Franks' rule is of "limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be accorded." Id. at 167, 98 S.Ct. at 2682.

Under Franks, "[t]here is ... a presumption of validity with respect to the affidavit supporting the search warrant." Id. at 171, 98 S.Ct. at 2684. In order to receive an evidentiary hearing on suppression, a defendant attacking the validity of an affidavit supporting a search warrant must make a "substantial preliminary showing" that: (1) the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in the warrant affidavit and (2) the remaining portion of the affidavit is insufficient to support a finding of probable cause. Id. at 171, 98 S.Ct. at 2684; see also, United States v. Dickey, 102 F.3d 157, 161-62 (5th Cir.1996). The Court spelled out in some detail what it meant by a "substantial preliminary showing:"

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 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 is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

Id. at 171-72, 98 S.Ct. at 2684.

The "substantial preliminary showing" requirement is not lightly met. See United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995); United States v. Tibolt, 72 F.3d 965, 973 (1st Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 2554, 135 L.Ed.2d 1073 (1996); United States v. Wajda, 810 F.2d 754, 758 (8th Cir.1987), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). Furthermore, even if the defendant makes the requisite substantial preliminary showing for an evidentiary hearing, suppression is still not mandated unless the defendant establishes at the hearing, by a preponderance of evidence, that the misstatements in question were made intentionally or with reckless disregard for the truth and that, with the false statement omitted, probable cause was lacking. Franks, 438 U.S. at 156, 98 S.Ct. at 2676.

The Franks holding has been extended to cover alleged omissions in a supporting affidavit, as well as false statements. See United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir.1995); United States v. Atkin, 107 F.3d 1213, 1216-17 (6th Cir.1997); United States v. Hunter, 86 F.3d 679, 682 (7th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996); Hiveley, 61 F.3d at 1360; United States v. Collins, 61 F.3d 1379, 1384 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United States v. Paradis, 802 F.2d 553, 558 (1st Cir.1986). Courts have noted, however, that while omissions are not exempt from inquiry under Franks, affidavits containing omissions of potentially exculpatory information are less likely to present a question of impermissible official conduct than those that affirmatively include false information. Atkin, 107 F.3d at 1216-17; United States v. Martin, 920 F.2d 393, 398 (6th Cir.1990); United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990). In cases involving omissions, to trigger an evidentiary hearing, a defendant must make a substantial preliminary showing that: 1) the omission was made intentionally and/or with reckless disregard for the omission's tendency to mislead and 2) if the omitted material had been included in the supporting affidavit, there would not have been probable cause. See, e.g., Atkin, 107 F.3d at 1217 ("If the defendant does succeed in making a preliminary showing that the government affiant engaged in `deliberate falsehood' or `reckless disregard for the truth' in omitting information from the affidavit, the court must consider the affidavit, including the omitted portions, and determine whether probable cause still exists."); see also, Tomblin, 46 F.3d at 1377; Hiveley, 61 F.3d at 1360; Collins, 61 F.3d at 1384; Paradis, 802 F.2d at 558.

The Fifth Circuit has acknowledged that "it will often be difficult for an accused to prove that an omission was made intentionally or with reckless disregard rather than negligently unless he has somehow gained independent evidence that the affiant had acted from bad motive or recklessly in conducting his investigation and making the affidavit." United States v. Martin, 615 F.2d 318, 329 (5th Cir.1980). For this reason, the Fifth Circuit has recognized that "when the facts omitted from the affidavit are clearly critical to a finding of probable cause the fact of recklessness may be inferred from proof of the omission itself." Id. (emphasis added). See also, United States v. Cronan, 937 F.2d 163, 165 (5th Cir.1991); Hale v. Fish, 899 F.2d 390, 400 (5th Cir.1990) (same); United States v. Namer, 680 F.2d 1088, 1094 (5th Cir.1982), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988). Thus, under Fifth Circuit law, if the materiality of the omission is great enough, recklessness can be inferred. In such cases, the analytical concepts of materiality and recklessness are "bound together," collapsing the dual inquiry of Franks into both "intentionality" and "materiality" into a single inquiry into materiality. Namer, 680 F.2d at 1094. But see, Colkley, 899 F.2d at 301 (rejecting Fifth Circuit position that bad motive under Franks can be inferred from fact of omission alone because Frank...