United States v. Brian

• Decision Date: 09 February 1981
• Docket Number: Crim. No. 80-0018.
• Citation: 507 F. Supp. 761
• Parties: UNITED STATES of America v. John BRIAN et al.
• Court: U.S. District Court — District of Rhode Island

507 F. Supp. 761

UNITED STATES of America v. John BRIAN et al.

Crim. No. 80-0018.

United States District Court, D. Rhode Island.

February 9, 1981.

Paul F. Murray, U. S. Atty., James H. Leavey, Sp. Atty., U. S. Dept. of Justice, Providence, R.I., for plaintiff.

John Tramonti, Jr., John A. O'Neill, Providence, R.I., Aram K. Berberian, Warwick, R.I., William Dimitri, Jr., Providence, R.I., William G. Hundley, Washington, D.C., John F. Sheehan, Providence, R.I., Morris M. Goldings, Boston, Mass., Edward J. Mulligan, Warwick, R.I., Gerald M. Smith, Avon Lake, Ohio, K. George Joovelegian, Coventry, R.I., Michael Cohen, Chicago, Ill., Matthew J. Zito, North Providence, R.I., Harold C. Arcaro, Jr., Providence, R.I., Thomas J. Grady, Warwick, R.I., Bruce Assad, Fall River, Mass., Richard Shadyac, Fairfax, Va., Charles J. Rogers, Jr., Providence, R.I., Harold Borg, Kew Gardens, N.Y., Ralph J. Gonnella, Francis Mackey, Providence, R.I., for defendants.

Memorandum and Order

PETTINE, Chief Judge.

Defendants in this case are under Federal Indictment for alleged gambling offenses under 18 U.S.C. §§ 2, 1084, and 1955. Much of the Government's evidence stems from a Court order that authorized wire interceptions of telephone conversations at certain telephone numbers. See 18 U.S.C. § 2518. As support for its request for this wire interception authorization, the Government relied on the affidavit of Federal Bureau of Investigation Special Agent Martin P. Conley. See 18 U.S.C. § 2518(1)(a)-(f). In this affidavit, agent Conley set out in detail the facts and information that led him to believe that sufficient probable cause existed to justify issuance of the intercept order. Id. Much of the information contained in the affidavit was attributed to confidential informants.

Defendants have now filed several motions challenging agent Conley's affidavit under the Supreme Court case of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Defendants, in the first instance, simply request a so-called "Franks" hearing. In support of this request, they have submitted affidavits and an offer of proof purportedly demonstrating deliberate falsehood or reckless disregard for the truth on the part of agent Conley in his affidavit supporting the Government's request for a wire interception order. Alternatively, defendants request that the Court order production of either the Government's informants or their "informant files" for examination by defendants. Defendants seek this order because, without it, they will be unable to establish their right to a full-fledged Franks hearing in which they can challenge the veracity of agent Conley. For the reasons that follow, I find that defendants have not established their right to a Franks hearing, nor have they convinced me that I should order the Government to identify its informants or produce their "informant files." However, because of the peculiar circumstances associated with this prosecution, I will order the Government to produce agent Conley for an ex parte, in camera interview by the Court. During this interview, I will satisfy myself of the existence of the Government's informants and of the accuracy of their statements as represented by agent Conley. If necessary, I will order production of the informants themselves for interview by the Court. In this way, I believe the Court can best protect the interests of all parties to this action and assure that justice prevails.

DISCUSSION

A. Defendants' request for a "Franks" hearing.

In the case of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court addressed the question whether "a defendant in a criminal proceeding ever has the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant." 438 U.S. at 155, 98 S.Ct. at 2676. The Franks case involved a challenge to a warrant affidavit in which two named individuals had allegedly provided the affiant with information that supported a finding of probable cause to search defendant's residence. Prior to trial, however, defendant's counsel moved to suppress the items discovered in the search on grounds that the warrant failed to establish probable cause, and on grounds that the affiants lied in their warrant affidavit. Counsel stated that the individuals named in the warrant affidavit would testify that they had not been "personally interviewed by the affiant, and that, although they might have talked to another police officer, any information given by them to that officer was `somewhat different' from what was recited in the affidavit." 438 U.S. at 158, 98 S.Ct. at 2677-78. Counsel for defendant asserted that the misstatements were made in "bad faith." The State objected to defendant's proposed evidence and the trial court refused to look beyond the face of the warrant affidavit. Defendant was convicted and the State Supreme Court affirmed. On Certiorari, the Supreme Court of the United States reversed, holding that

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

438 U.S. at 155-56, 98 S.Ct. at 2676-78. Hence, after Franks the defendant must make a "substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth" was made by the affiant in his affidavit. This showing must be supported by an offer of proof. This part of defendant's showing, moreover, "must be more than conclusory and must be supported by more than a mere desire to cross-examine." 438 U.S. at 171, 98 S.Ct. at 2684. The offer of proof "should point out specifically the portion of the warrant affidavit that is claimed to be false," and "affidavits or sworn or other wise reliable statements of witnesses should be furnished .... Allegations of negligence or innocent mistake are insufficient." Finally, the showing must be directed toward the veracity of the affiant, not toward the veracity of governmental informants. Id. If defendant makes the required preliminary showing, the Court must then determine whether the challenged material was necessary to a finding of probable cause. If so, the defendant is entitled to a hearing. At the hearing, if defendant can establish by a preponderance of the evidence that the affiant either made deliberate misstatements or made statements with reckless disregard for the truth, and if these statements were necessary to a finding of probable cause, the Court must invalidate the warrant and suppress the fruits of the search, or, in this case, the wire tap and the subsequent searches.

In the case at hand, defendants base their request for a Franks hearing on their own affidavits denying that they ever did or said the things attributed to them in agent Conley's affidavit and on an alleged inconsistency in the Government's materials. I must now consider whether these elements comprise the high threshold showing required by Franks.

Regarding defendants' affidavits denying things attributed to them by Conley's affidavit, I must first note that the Supreme Court made it very clear that a defendant's challenge must be directed at the veracity of the affiant, not the veracity of governmental informants. 438 U.S. at 171, 98 S.Ct. at 2684. The question is whether agent Conley accurately and truthfully represented what the informants told him, not whether the informants lied to agent Conley. See United States v. Barnes, 604 F.2d 121, 152-53 (2nd Cir. 1979); United States v. Edwards, 602 F.2d 458, 465 (1st Cir. 1979); United States v. Weingartner, 485 F.Supp. 1167, 1182-83 (D.N.J.1979). With this distinction in mind, I find that defendants' affidavits do not sufficiently implicate agent Conley's veracity. Assuming the truth of what defendants state, their offer of proof at best impugns either the veracity of the informants or the veracity of Conley. In order to establish their right to a Franks hearing, however, defendants must make a substantial preliminary showing of deliberate falsehood or reckless disregard for the truth on the part of agent Conley. Defendants' affidavits fail to meet this standard.

Another element of defendants' offer of proof requires some background. Agent Conley's affidavit in support of this Court's wire interception authorization relied primarily on information supplied to him by confidential informants. Several of these informants told agent Conley that they engaged in betting activity with certain defendants at certain telephone numbers. These representations, accompanied by the necessary indicia of reliability and corroborating circumstances, supplied the requisite probable cause for an order authorizing wire interceptions of calls made to and from these numbers. Defendants contend, however, that the transcripts of actual interceptions fail to show any "unidentified" callers. This fact, defendants contend, "seems strangely inconsistent with the contents of agent Conley's affidavit which affirmatively show substantial gambling activity between all of the informants and the `target' defendants and the `target' telephones." Defendants do not elaborate further on their...