In re Search Warrant

40 F. Supp. 3d 143, 2014 WL 1849323, 2014 U.S. Dist. LEXIS 61476
CourtDistrict Court, District of Columbia
DecidedMay 2, 2014
Docket00-MJ-138 (JMF)
StatusPublished

This text of 40 F. Supp. 3d 143 (In re Search Warrant) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Search Warrant, 40 F. Supp. 3d 143, 2014 WL 1849323, 2014 U.S. Dist. LEXIS 61476 (D.D.C. 2014).

Opinion

[144]*144MEMORANDUM OPINION AND ORDER

JOHN M. FACCIOLA, UNITED STATES MAGISTRATE JUDGE

I. Background

On November 26, 2013, this Court granted Robert Berman’s Motion to Unseal Search Warrant Ajfidavit(s) [# 21] and ordered that the docket in this then-thirteen year-old search warrant case be unsealed in full. See In re: Search Warrant, 00-MJ-138 [#33], 5 F.Supp.3d 18, 2013 WL 6184458 (D.D.C. Nov. 26, 2013) (providing a detailed account of the prior procedural history in this matter). The Court also interpreted part of Berman’s motion as requesting the release of related grand jury materials under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure, and it instructed the government to “advise the Court in writing whether: 1) the records still exist; and 2) whether any or all of them have been made available to Berman.” Id. The government promptly notified the Court that it had several hundred pages of grand jury transcripts and related materials, see Notice of Grand Jury Materials Still in Existence [#36], and it volunteered to give Berman all of those documents except “internal government memoranda and notes, all of which almost certainly constitute privileged work product.” Government’s Reply to Petitioner’s Response to Order to Show Cause [# 39] at 3. The Court entered the government’s proposed order, see Order [#40], and then required Ber-man to show cause “why this matter cannot now be closed.” February 18, 2014, Minute Order to Show Cause.

II. Grand Jury Materials Related to Other Pending Cases Cannot Be Released in This Case

Berman is a defendant in on-going civil litigation brought by the government,' Civil Action No. 03-96, and he also has a proceeding before the Merit Service Protection Board (“MSPB”).' See In re: Search Warrant, 5 F.Supp.3d at 19-20, 21, 2013 WL 6184458, at *1-2, *3, n. 6. In his latest filing, Berman persists in his need for all grand jury-related materials, including those that the government has withheld under the work product privilege. See generally Robert A. Berman’s Response to Order to Show Cause [# 42]. He believes that several documents were simply not disclosed even though they are known to exist because of their mention in various other filings. See id. at 3-6. He also argues that Federal Rule of Evidence 502 requires the release of at least some of the work product because it has been disclosed in another proceeding, see id. at 6-7, and he alleges that the work product privilege is also waived because the government perpetrated a fraud upon this Court in the original search warrant application in 2000. Under Berman’s theory, the crime-fraud exception to the work product privilege therefore applies. See In re Grand Jury Proceedings, G.S, F.S., 609 F.3d 909, 912 (8th Cir.2010) (noting that the crime-fraud exception of United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) also applies to the work product privilege).

The government has not filed a response. However, it has previously noted that “[t]o the extent that Berman seeks to obtain any materials beyond the grand jury materials [disclosed by the Court’s Order], those requests should be submitted in the normal course of Berman’s MSPB and civil litigation.” [#39]. The Court agrees with the government that, insofar as the requested grand jury disclosure is unrelated to the present search warrant case, Berman cannot obtain from this Court the relief he seeks. Under the [145]*145Supreme Court’s reasoning in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 230, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979), this Court does not believe it is in the best position to have the “special knowledge of the civil actions” to consider Berman’s request for further grand jury document releases as they relate to his ongoing MSPB and civil litigation. Instead, a petition directed to Judge John D. Bates of this Court in the civil action and a separate miscellaneous action pursuant to Local Rule of Criminal Procedure 6.1—for the MSPB litigation—would be more appropriate. After all, this case is only about the search warrant issued on March 15, 2000, and it would be inappropriate for Berman to use it as a vehicle to seek relief more closely related to other, on-going cases, where he has clear avenues for relief open to him.

III. Berman Appears to Seek a Franks v. Delaware Hearing

For the past fourteen years, Berman has repeatedly claimed that Special Agent Joseph D. Crook, Jr. “engaged in a deliberate effort to mislead this Court as to the purported facts that supposedly establish the probable cause for the issuance of the warrant.” Robert Berman’s Response to the Government’s Supplemental Motion to Seal Affidavit Supporting Application for Search Warrant [# 10] at 2; see also [# 21] at 5 (“All such statements would have been known to be false at the time they were made.”); [# 42] at 8 n.2 (“Misconduct would include, but [is] not limited to, the knowingly false statements in Agent Crook’s affidavit [37 at 4-6] ... ”). In at least one motion, Berman argued that he needed the search warrant application unsealed so he could exercise his “constitutional right to challenge the permissibility of the search if the warrant was based on an affidavit containing knowingly false statements or [statements made] with a reckless disregard for the truth.” Reply to Response [sic] Motion to Unseal Search Warrant Affidavit(s) [# 25] at 5 (sealed)1 (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).

Although Berman is not always entirely clear, given his pro se status, this Court can only interpret his statements as a request to proceed under Franks. That case outlined a bifurcated procedure where a challenger first offers specific allegations about falsities in the warrant application that are supported by proof. Franks, 438 U.S. at 171, 98 S.Ct. 2674. The Fourth Amendment then mandates a hearing if, and only if, the challenger has shown that, had “deliberate falsity or reckless disregard” not been used in the warrant application, there would have been insufficient probable cause to issue the 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.

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40 F. Supp. 3d 143, 2014 WL 1849323, 2014 U.S. Dist. LEXIS 61476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-search-warrant-dcd-2014.