UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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)
In re: Search Warrant ) 00-MJ-138 (JMF)
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MEMORANDUM OPINION AND ORDER
I. Background
On November 26, 2013, this Court granted Robert Berman’s Motion to Unseal Search
Warrant Affidavit(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], 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 Berman 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, 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 (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 Supreme Court’s reasoning in Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 230 (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
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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 (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. The Fourth Amendment then
1
This filing is available in a public, redacted form at [#34-3].
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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. The deliberate falsity or reckless disregard
whose impeachment is permitted today 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. On the other hand, if the remaining
content is insufficient, the defendant is entitled, under the Fourth and Fourteenth
Amendments, to his hearing. Whether he will prevail at that hearing is, of course,
another issue.
Id. at 171-72.
It is far from clear, however, that this Court has any authority to actually proceed under
Franks, let alone provide any relief even if a Franks violation has occurred. At the same time,
this Court is also troubled by the prospect that—if Agent Crook did intentionally or recklessly
mislead this Court in order to have the original search warrant issued—this Court would be
powerless to do anything in response; this would leave Berman with no remedy for a violation of
his Fourth Amendment rights. After all, the Supreme Court made clear in Franks that “the Fourth
Amendment requires that a hearing be held” if the target of a search warrant can meet his burden.
Franks, 438 U.S. at 156. Thus, unlike the exclusionary rule, which is a court-created remedy to
address an underlying constitutional violation, a Franks hearing is itself required by the Fourth
Amendment under certain circumstances.
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This Court is aware of only two remedies for a Franks violation—neither of which is
applicable in this case. The ordinary remedy is application of the exclusionary rule and
suppression at trial of any evidence illegally obtained. See Franks, 438 U.S. at 171. In at least
one case, a magistrate judge remedied a Franks violation by ordering the return of property that
was seized as a result of the invalid search warrant. See generally In re Search Warrants Served
on Home Health and Hospice Case, Inc., 121 F.3d 700 (4th Cir. 1997) (affirming a ruling by the
magistrate judge, who issued the underlying warrant, that a Franks violation had occurred and
that, pursuant to a motion to return property under then-Rule of Criminal Procedure 41(e) (now
Rule 41(g)), the property had to be returned). Similarly, the D.C. Circuit has suggested that an
appropriate remedy for a Franks violation may be a return of property. See In re Search Warrant
Dated July 4, 1977, for Premises at 2125 S St., Northwest, Washington D.C., 667 F.2d 117, 136-
37 (D.C. Cir. 1981).
Here, however, Berman was not criminally charged—thus there is no evidence to
suppress—and he has not alleged that any of his property is still being held by the government.
The Court is therefore unsure of whether it has any authority to proceed under Franks. It may
well be that Berman has a remedy before Judge Bates in the on-going civil litigation—or that
Judge Bates has already adjudicated this very issue. Nevertheless, the Court is troubled that
Berman may have no remedy and that this Court would therefore be powerless to ensure that
affidavits submitted in support of search warrants are truthful. As the Supreme Court recognized,
“[t]he requirement that a warrant not issue ‘but upon probable cause, supported by Oath or
affirmation,’ would be reduced to a nullity if a police officer was able to use deliberately
falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was
able to remain confident that the ploy was worthwhile.” Franks, 438 U.S. at 168. It may well be
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that this Court’s contempt powers are sufficient to allow it to proceed under Franks—but it is far
from clear. See id. at 169 (suggesting that “sanctions of a perjury prosecution, administrative
discipline, contempt, or a civil suit are not likely to fill the gap” if the exclusionary rule is not
extended to Franks violations, and thus implying that those other remedies still exist). It is
similarly unclear whether Berman may proceed before Judge Bates on his Franks allegations in
the ongoing civil litigation.
IV. Conclusion
For the reasons stated above, it is, hereby, ORDERED that the Federal Public Defender
for the District of Columbia is appointed amicus curiae; 2 and
It is further ORDERED that amicus and Robert Berman shall file separate briefs by June
20, 2014, indicating: 1) what authority—if any—exists that would allow this Court to proceed
under Franks v. Delaware, 438 U.S. 154 (1978); 2) whether Berman has a remedy before Judge
Bates under Franks; and 3) whether Judge Bates has already adjudicated the issue of the veracity
of Special Agent Joseph D. Crook, Jr.’s statements in the search warrant affidavit. The
government shall file an opposition by July 11, 2014, and amicus and Berman shall file separate
reply briefs by July 18, 2014.
SO ORDERED.
Digitally signed by John M.
Facciola
DN: c=US,
email=john_m._facciola@dcd.us
courts.gov, o=United States
District Court for the District of
Columbia, cn=John M. Facciola
Date: 2014.05.02 09:08:31 -04'00'
___________________________________
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
2
Due to preexisting commitments, amicus has requested that no briefing be due before mid-June.
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United States v. Berman
Combined Opinion