Articles Posted in Federal Criminal Defense

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that in certain defined circumstances a defendant can attack a facially sufficient affidavit. The Franks Court recognized a “presumption of validity with respect to the affidavit supporting the search warrant,” 438 U.S. at 171, 98 S.Ct. at 2684, and thus created a rule of “limited scope,” id. at 167, 98 S.Ct. at 2682. The rule created by the Franks decision requires that a dual showing be made before a court will hold an evidentiary hearing on the affidavit’s integrity. This showing incorporates both a subjective and an objective threshold component. In order to obtain an evidentiary hearing on the affidavit’s integrity, a defendant must first make “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.” Id. at 155-56, 98 S.Ct. at 2676-77. This showing “must be more than conclusory” and must be accompanied by a detailed offer of proof. Id. at 171, 98 S.Ct. at 2684.

In addition to showing that the affidavit contains false information, a defendant must show that the false information is essential to the probable cause determination. That is, if a court finds that “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 2684-85.

The Franks test not only applies to cases where false information is included in an affidavit, but also applies when affiants omit material facts “with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading.” United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986) and United States v. Colkley, 899 F.2d 297, 300 (4th. Cir.1990).
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Government wire interceptions must be conducted in a manner to minimize interceptions of communications not subject to interception. 18 U.S.C. Section 2518(5). Minimization embodies the constitutional requirement of avoiding, to the greatest extent possible, seizure of conversations which have no relation to the crimes being investigated or the purpose for which electronic surveillance has been authorized. United States v. Clearkley, supra, 556 F.2d at 715 & n.3 (and cases and authorities cited therein). Law enforcement personnel must exhibit a high regard for the right to privacy and do all they reasonably can to minimize interceptions of non-pertinent conversations. Id. at 716; United States v. Tortorello, 480 F.2d 764, 784 (2nd Cir.), cert. denied, 414 U.S. 866 (1973).

The United States Supreme Court decision of United States v. Booker, 543 U.S. 220 (2005) restored the Federal Disstrict Judge’s ability to fashion a sentence tailored to the unique circumstances of each case and each criminal defendant by requiring courts to consider factors other than the sentencing range prescribed by the United States Sentencing Guidelines. Thus, although the trial courts still must take the Sentencing Guidelines into account, Booker rendered the Sentencing Guidelines advisory.

Now in federal criminal cases in Maryland and across the country, the sentencing guideline range is no longer binding on the Court, but is only one of several factors to be considered in determining the sentence. The other factors the Court is directed to consider are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care or other correctional treatment; (3) the kinds of sentence available; (4) the need to avoid unwarranted sentencing disparity; and (5) the need to provide restitution.

In considering the § 3553(a) factors, the sentencing guidelines are to be given no more or less weight than any other factor. In addition, the Guidelines are not to be given any “presumption of reasonableness.”
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