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October 7, 1985


The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 The defendants have moved this Court pursuant to Rule 12(b)(3) of the Fed.R.Crim.P. for an order suppressing physical evidence seized pursuant to a search warrant. The defendants contend that the affidavit of an F.B.I Agent based upon which the search warrant was granted contained statements which were knowingly and intentionally false or made by him with a reckless disregard for the truth and that a hearing to test their contentions is required by Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). The defendants also contend that the affidavit failed to establish any connection between the items sought to be seized and the places to be searched. And finally, they contend that the information relied upon in the affidavit was stale. The defendants also contend that notebooks which were seized during the searches and which the government asserts contain incriminating information in code, were immune from seizure under the Fourth Amendment.

 Franks v. Delaware, supra, decided that if a defendant makes a substantial preliminary showing that (1) the affidavit upon which a search warrant was granted contained false statements made knowingly and intentionally or with a reckless disregard for the truth and (2) if the allegedly false statement is necessary for the finding of probable cause, then the Fourth Amendment requires that a hearing be held at the request of the defendant. if the allegation of perjury or reckless disregard is established at the hearing by the defendant by a preponderance of the evidence and with the false material set aside, the remainder of the affidavit is insufficient to establish probable cause then the search warrant must be voided and the fruits of the search excluded as if probable cause was lacking on the face of the affidavit. The Court was careful to exclude from the embrace of the rule statements which were the result of police negligence in checking or recording facts relevant to a probable cause determination to avoid misuse of the hearing for purposes of discovery or obstruction. The Court was also careful to explain what was meant by a "substantial preliminary showing. It said, at p. 171:

There is . . . a presumption of validity with respect to the affidavit supporting the search 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 our 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 non-governmentalinformant.

 If all those requirements are met and if setting aside the material that is the subject of the alleged falsity or reckless disregard there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. Only if the remaining content is insufficient, is the defendant entitled to a hearing.

 With these principles in mind, I turn to the first prong of Franks which is - is there a substantial preliminary showing that the affiant made false statements knowingly and intentionally or with a reckless disregard for the truth. The statements alleged to be made intentionally with knowledge of falsity or with reckless disregard for the truth will be considered in the order in which they are set out in the affidavit of the defendant Levasseur, in support of this motion.

 The affidavit in question was made by FBI Agent Leonard C. Cross on November 5, 1984. The defendants were arrested on November 4, 1984. Agent Cross was assigned in February 1984 to coordinate an extensive investigation which had been ongoing for many years into the alleged terrorist activities of the defendants. His affidavit was based upon his participation in the investigation, upon his familiarity with reports generated in the course of his investigation and upon his experience in such investigations. Mention in the discussion which follows to "Aceto" refers to Joseph Aceto; "Topsfield" refers to a transcript of an interview of Aceto by detectives of the Massachusetts State Police and FBI Agent Quigley in the Massachusetts State Police Barracks in Topsfield, Massachusetts on July 4-5, 1976; "Picariello" refers to Richard Picariello; "Carlson" refers to the transcript of the trial in United States v. Carlson, Cr. No. 76-26 (D.Maine 1976); "SMJJU" refers to the Sam Melville - Jonathan Jackson Unit.

 A. The Suffolk County Courthouse Bombing

 1. In paragraph 23 of his affidavit Cross states that "After the bombing, Aceto spoke with Levasseur in an effort to obtain a portion of the blasting accessories which had previously been stockpiled by the original group. During this conversation Levasseur said, 'we used twelve sticks of dynamite.'" That statement is alleged to be falsely or recklessly made because Topsfield (pp. 2-19, 2-44) indicates that Aceto was told by Picariello that "they used twelve sticks;" that Levasseur never stated to him that they committed that crime (p. 2-45).

 2. In that same paragraph, Cross attributes to Aceto a statement made to him by Levasseur in Calais, Maine, that the Suffolk County Courthouse would be an excellent bombing target after reading that probation records were stored there because the destruction of those records would prevent a reconstruction of the background of the persons whose records they were.

 That statement is alleged to be false in that Aceto, in sworn testimony in Carlson said that he had neither heard nor mentioned the Suffolk County Courthouse before he heard about the bombing of it on the news.

 Although there is no reference in the Cross affidavit to the Topsfield interview, it may or may not be fair to infer that much of the information in that affidavit came from that interview. There is nothing before the Court to indicate whether the information in the affidavit was derived from a reading of Topsfield by Agent Cross himself or whether the contents of Topsfield was conveyed to Cross by someone else who either read it or was present at the interview. There is also nothing before the Court to indicate when Cross read Topsfield (if at all) or when its contents were conveyed to him. It should be noted that a span of more than eight years separates Topsfield from the Cross Affidavit.

 In any event, I find more than enough in Topsfield to minimize the significance of the first discrepancy seized upon by the defendants.

 Immediately preceding the sentence in Topsfield reflecting that Picariello told Aceto that "They used twelve sticks," Picariello is said to have told Aceto, "They (Levasseur and Gros) told me to tell you if you ask that (the bombing) was done by the Jonathan-Jackson-Melville Unit" (Tr. p. 2-44).

 There are many references to the SMJJU in Topsfield. For example, on page 81, Aceto identified Levasseur as the leader of the SMJJU, and on page 2-59 identified the members of the SMJJU as being Levasseur, Gros, Thomas and Carol Manning and three or four others.

 On page 82 of Topsfield, Aceto states that Raymond Levasseur was the man who placed the bomb at the Courthouse in Boston and that Pat Gros made the threats, the phone calls.

 Viewing the statement attacked in the context of the Topsfield transcript in its entirety, one can only say that it is a trifle and does not demonstrate that the affidavit statement was deliberately false or recklessly made in that respect. Affidavits are not read "with the same microscopic intensity as municipal bond counsel would a bond indenture." United States v. Pond, 523 F.2d 210, 214 (2d Cir. 1975).

 As to the second inaccuracy of which mention was already made, whether Cross' failure to refer to that excerpt from the Carlson trial which was some nine years prior to his affidavit was one that was knowing and intentional or reckless would depend upon Cross' familiarity with the entirety of the Carlson transcript and if he had any familiarity with it, whether he had nay recall of that excerpt when he made his affidavit and what he understood the excerpt to convey.

 B. The Red Star North Brigade

 In paragraph 11 of his affidavit, Cross attributes to Aceto the information that during 1974 Levasseur, Gros and Manning formed the Red Star North Collective, a bookstore in Portland, Maine and that the same persons were members of the Red Star North Brigade. In paragraph 12, Cross states that Aceto agreed to join a group of which Levasseur and Manning were the leaders, which Aceto "later came to know as the Red Star Brigade." In paragraph 21, Cross makes another reference to the Red Star North Brigade, the original members of which were Levasseur, Gros, Carol and Thomas Manning and that the group later became known as the SMJJU.

 These statements are alleged to be false because (1) Topsfield contains no reference to an entity called the Red Star North Brigade; (2) Aceto denied that the group he belonged to had a name prior to the formation of the SMJJU. It is claimed that Cross deliberately fabricated the name Red Star North Brigade to "invoke images" (presumably in the mind of the Magistrate) "which would make Cross' later speculations pass muster." (Levasseur Aff. p. 10).

 A careful reading of Topsfield reveals that Aceto identified a photograph purporting to portray the members of a "Red Star North Collective." Tr. 2-47-49. Relying again upon the teaching of United States v. Pond, supra, the discrepancy between "collective" and "brigade" is a trifle which does not demonstrate that the affidavit was deliberately false or reckless.

 C. The York Beach Meeting

 In paragraph 12 of his affidavit, Cross relates a meeting at York Beach, Maine, to which Aceto was summoned by Levasseur and Manning at which Aceto was advised that the bombings would be carried out against targets viewed as instruments of an oppressive United States Government. Aceto was also advised at that meeting that the operation would be financed by bank robberies and that if he joined, Aceto's life style would change in that he would thereafter live underground.

 These statements are alleged to be false in that neither Topsfield nor Carlson reflect the "ideological content" of the meeting presented in the Cross affidavit, nor do they indicate that Levasseur and Manning were the leaders of a group committed the the bombings and bank robberies.

 A careful reading of Topsfield and Carlson does not support the assertion of deliberate falsity or reckless disregard for the truth attributed to paragraph 12 of the Cross affidavit. Aceto did say that he was contacted by Levasseur and Manning and was asked to meet them at York Beach (Topsfield, 2-69). He said that Levasseur knew that he (Aceto) was interested in "doing some political activities" and wanted to know where I stood (Topsfield p. 2-70). He also stated that the conversation took place with Levasseur and that robbing banks and bombings ("How do you feel about blowing up places") was discussed as was living underground (Topsfield 2-70). Similarly, a careful reading of Carlson reflects the bank robbery and bombings were discussed (Carlson, pp. 103-104).

 The only discrepancy between the Cross affidavit and Topsfield and Carlson (assuming that all the information available to Cross came from those sources only) relates to the "ideological content" assertion which again, I find, is a discrepancy so lacking in material significance as to fail to justify the conclusion of deliberate falsity or reckless disregard.

 D. The Portland, Maine Bank Robbery

 Paragraph 6 of the Cross affidavit recites that approximately $11,000 was taken from the Northeast Bank of Westbrook, Lunts Corner Branch, Portland, Maine.

 The falsity alleged is that Topsfield indicates that $2,200 was taken. The government's memorandum (p.24) asserts that in United States v. Barrett which involved this bank robbery, it was explained that $11,000 was taken, but approximately $9,000 was dropped as the robbers ran for their getaway car. See Also Exhibit N, page 9 (Cross Affidavit, March 21, 1985), attached to the Levasseur affidavit and Topsfield, p. 2-81.

 The discrepancy of the dollar amount is satisfactorily explained and does not support an assertion of deliberate falsehood or reckless disregard.

 E. The Augusta, Maine Bank Robbery

 In paragraph 14-16 of the Cross affidavit reference is made to the robbery of the Civic Center Branch of the Bank of Maine as having occurred, Aceto said, on December 12, 1975. Participating in that robbery were Levasseur, Aceto, Thomas and Carol Manning, who drove the getaway car.

 The falsity alleged is that in Topsfield at p. 2-98, Aceto said the bank robbery occurred on November 8, 9 or 10.

 If, in fact, the robbery occurred on November 8, 9 or 10 instead of December 12, 1975, the discrepancy is a "trifle" which does not demonstrate that the affidavit was deliberately false. United States v. Pond, 523 F.2d 210 (2d Cir. 1975). In paragraph 21(d) of Exhibit N (Affidavit of Cross, dated March 21, 1985) attached to the moving papers, the December 12, 1975 date is asserted as being correct.

 F. Explosives and Training

 Paragraph 19 of the Cross affidavit states that Aceto was given extensive instruction regarding bombs by Levasseur and that Aceto saw many books and pamphlets relating to explosives in Levasseur's residence.

 The falsity alleged is that Topsfield contains no such account. It is also alleged that Cross, in par. 19 falsely recites that Levasseur instructed Aceto in the use of weapons. Par. 19 does not contain such an assertion. It is also alleged that in Carlson, ...

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