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United States v. Huskisson

United States District Court, S.D. Indiana, Indianapolis Division

July 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL M. HUSKISSON (01), Defendant.

          ORDER DENYING DEFENDANT'S PRETRIAL MOTIONS AT DOCKET NOS. 124, 135, 139, 140, 141, 152, 155 & 157

          SARAH EVANS BARKER, JUDGE

         Before the Court is a series of pretrial motions filed by the Defendant appearing pro se. After careful review, the Court issues the following rulings:

         1. Defendant's Motion for Evidentiary Hearing Pursuant to Franks v. Delaware, 438 U.S. 154 (1978). [Docket No. 124]:

         The Motion is DENIED. None of the grounds cited by Defendant in his motion constitutes a material misstatement or omission justifying a Franks hearing. He has failed to make the required “substantial preliminary showing that a false statement” by Affiant was “knowingly or intentionally, or with reckless disregard for the truth” made and included in the warrant affidavit. Franks, 438 U.S. at 155-56; see also, United States v. Currie, 739 F.3d 960, 963 (7th Cir. 2014). Defendant has failed to establish that any of the alleged errors or omissions in the affidavit affected (or would have affected) the magistrate judge's finding that probable cause existed to support the search warrants at issue in this case.

         The “omissions” cited by Defendant reference information as to the informant's background and status as a first-time informant. Defendant objects to the omission of the informant's prior arrest on a drug conspiracy charge, and the potential mandatory minimum sentence the informant might have faced had he been convicted of the offense for which he was arrested. This information, even assuming it is all truthful and accurate, is not material when, as here, other information in the affidavit sufficiently corroborates the truthfulness of the informant's statements. United States v. Taylor, 471 F.3d 832, 840 (7th Cir. 2006). The affidavit (¶ 6) clearly states that the informant whose assistance was relied upon by law enforcement in this case had cooperated only after his arrest for conspiracy to distribute methamphetamine and related offenses. Ongoing surveillance activities and monitoring by law enforcement officers occurring simultaneously with the confidential informant's actions and statements throughout the investigation corroborate the informant's statements as referenced in the Affidavit. This information sufficed to alert the magistrate judge to the informant's reason(s) and motives for cooperating with federal agents.

         Similarly, information concerning the informant's possible or likely motive for providing information was not material in light of the other information set out in the affidavit which sufficiently corroborated the informant's statement(s). Id. at 840.

         Defendant's challenges to statements allegedly made by and about himself as well as the informant relating to previous drug dealings, though controverted by Defendant, have not been supported by an offer of proof by sworn affidavits or other reliable witness statements. Thus, there is no basis on which the Court could rule that statements by an agent which have been disputed by Defendant reflect a deliberate falsehood or constitute reckless statements made by him in disregard of the truth in the Affidavit.

         To the extent there are factual inconsistencies/disparities between the assertions in the affidavit and subsequently proffered government evidence, these discrepancies, at most, involve trivial matters. They are minor, insignificant differences that do not rise to the level of undermining the reliability of the affidavit. They fall well short of establishing intentional or reckless falsehoods by the agent. It is likely that any factual disparities are the result of the circumstances in which the affidavit was prepared by the agent, who was at the time overseeing a fast-paced investigation in which the acquisition of a search warrant was necessary on an accelerated basis to ensure that evidence was not lost due to any delay on the part of law enforcement. Haste of this sort, when it occurs, can not only explain minor factual discrepancies, it undermines arguments accusing the agent of intentional or reckless falsehoods in drafting his affidavit.

         As noted, Defendant has failed to provide the necessary preliminary showing that any of the factual statements made in the search warrant affidavit or any of the alleged omissions from the affidavit amounted to either a deliberate falsehood or reckless indifference to the truth. Further, defendant has failed to establish that any of the alleged errors or omission had the potential to affect the magistrate judge's determination as to probable cause in support of the requested search warrants that ultimately were issued in this case. Defendant, therefore, is neither entitled to a Franks hearing nor to any other relief (i.e., suppression of evidence) based on the arguments advanced in this motion. Accordingly, it is DENIED.

         2. Defendant's Motion for Evidentiary Hearing on Defective/Invalid Search Warrant, pursuant to Federal Rule of Criminal Procedure 41(d)(2)(C). [Docket No. 140]:

         This Motion is DENIED. Defendant seeks the suppression of evidence that was obtained from the execution of federal search warrants at Defendant's residence and business on February 6, 2016. The relief sought is based on three alleged violations of Rule 41 - §§ (d)(2)(C), (f)(1)(A), and (b)(6)(B) and (C). (Section (d)(2)(C) is not the Rule cited by Defendant as the basis for this motion, but, after examining his contentions, we conclude that this Rule is the likely basis for his motion. The Rule he cited (Rule 41(2)(A)(c)) does not actually exist.)

         Rule 41 (d)(2)(C) requires that testimony received by the Court that has been proffered as support for a search warrant in the application be recorded by a court reporter or recording device and that the judge file a transcript or recording with the clerk of court. This provision applies when the warrant has been requested in the presence of a judge. The government indicates here that the search warrant application and attached affidavit were submitted to the magistrate judge and no witness testimony was elicited or provided relating to the issuance of the warrant. Thus, this requirement of a recording and the filing of a transcript does not apply to Defendant's case.

         Rule 41 (f)(1)(A) requires that the officer executing the warrant must enter on it the exact date and time it was executed. The date of the execution of the warrant was properly entered by the officer, to wit, February 6, 2016, the same date on which the warrant was issued by the magistrate judge. The exact time of the execution of the warrant, however, was omitted from the Return. This is, indeed, a violation of this rule, but it is a technical, minor violation about which well-established case law affords no relief. The requirement that the time of the execution of the warrant be placed on the warrant upon its return is a ministerial act, the violation of which neither voids the search warrant nor provides grounds for suppressing the evidence seized during the execution of the search warrant. United States v. Kelly, 14 F.3d 1169, 1173 (7th Cir. 1994).

         Rule 41 (d)(2)(C) applies to warrants sought by telephone or other electronic means. The warrant request at issue here was not submitted in this fashion. Thus, this rule ...


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