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Thursday, December 13, 2007

The Wire: Milwaukee Alderman Case Raises Question About Standard of Review in Franks Denial Cases

Pursuant to the Supreme Court's decision in Franks v. Delaware, 438 U.S. 154 (1978), if the defendant challenges the validity of a warrant, a court must grant an evidentiary hearing, now known as a Franks hearing, to the defendant if he makes a substantial preliminary showing that (1) a statement in the affidavit supporting the warrant was knowingly or intentionally false, or made with reckless disregard for the truth, and (2) the falsehood was necessary to the finding of probable cause.  Milwaukee Alderman Mike McGee Jr. has been accused of being involved in a vote buying scheme and other crimes.  Wednesday, the judge hearing the case struck a major blow to McGee's case when he ruled that federal wire taps can be used against McGee in his upcoming trial after conducting a Franks hearing. 

McGee's attorney, Glenn Givens, had contended that the federal agent who applied for the wire tap did so knowingly using false and misleading information.  Specifically, Givens claimed that the agent, Daniel Hargreaves, exaggerated McGee's suspected wrongdoing by including dubious allegations he couldn't prove, such as bribery of a bank executive, which is not among the criminal charges against McGee.  Givens also claimed that Hargreaves omitted accounts that McGee wasn't involved in buying votes.  Circuit Judge Dennis P. Moroney disagreed, finding that the only demonstrated inaccuracies presented to him, such as incorrect assertions of an informant's legal name, a central city's grocery ownership, and organizational details of a social activist group, amounted only to lack of investigative thoroughness and weren't enough to toss out the wiretaps because they did not establish deliberate falsity by the agent.

Without having access to McGee's submissions, I have no reason to quibble with the judge's decision, but this case does give me reason to address a circuit split which I feel the Supreme Court needs to resolve.  The judge in McGee's case granted him a Franks hearing and then rejected his arguments.  What would have happened, though, if the judge refused McGee's request to hold a Franks hearing and McGee appealed that decision? 

There is currently a sharp circuit split on the issue, with most courts holding that an appellate judge would review the denial pursuant to the abuse of discretion/clear error standard of review, under which the trial judge's decision would only be reversed if the decision was arbitrary and capricious.  See United States v. Arbolaez, 450 F.3d 1283, 1293 n.11 (11th Cir. 2006) (citing cases from the 1st, 2nd, 7th, and 8th Circuits).  A few courts, however, hold that an appellate judge would review the denial pursuant to the de novo standard of review, under which all the issue would be determined anew without regard for the initial disposition. See id. (citing cases from the 5th and 9th Circuits).  In light of this split, other courts have been wary of picking one side or the other and have openly refused to address the issue, instead finding that the refusals to hold Franks hearings with which they were presented could withstand scrutiny under either standard of review. See id. (citing a 6th Circuit case and coming to the same conclusion).

I agree with the minority of courts on this issue.  While merely labeling an issue as a mixed question of law and fact does not mean that it automatically receives de novo review, see Ornelas v. United States, 517 U.S. 690, 701 (1996), in the absence of a compelling reason to the contrary, these issue typically receive de novo review. See, e.g., United States v. Fadl, 498 F.3d 862, 865 (8th Cir. 2007).  It seems apparent to me that the Ninth Circuit is correct in holding that the issue of whether to hold a Franks hearing is a mixed question of law and fact because it "is a determination about the legal sufficiency of a set of allegations, much like the district court's ruling on a Fed.R.Civ.P. 12(b)(6) or summary judgment." United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985).  In deciding whether to hold a Franks hearing, the trial judge is at least partially deciding whether the alleged falsehood by the affiant was necessary to the finding of probable cause, which is a determination about the legal sufficieny of the defendant's allegations.

I might feel less secure in my argument if the courts applying the abuse of discretion/clear error standard of review in Franks hearing denial cases articulated a reasonable argument to the contrary.  After scouring several of these cases, however, I didn't find a single cases that actually laid out an argument for applying the abuse of discretion/clear error standard of review.  Instead, these courts seem to have applied this standard of review without any reasoning whatsoever. See, e.g., United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997).

One final note is that the McGee case gives me good reason to tout the upcoming fifth (and final) season premiere of David Simon's "The Wire" on HBO on January 6, 2008.  In my mind, this is one of the best shows on TV.  This series drops viewers into the Baltimore, Maryland milieu and presents you with all sides of the drug war in an uncompromising verite vision.  I enjoy any of the various incarnations of "Law & Order" from time to time, but it's strictly the sticks compared to Simon's major league vision.

-CM

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