The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the Government's motion (Docket No. 108*fn1 ) for reconsideration of the decision to hold a Franks*fn2 hearing for defendant George Krajas (Docket No. 103, Order of July 19, 2012, at 11-13, 15; cf. Docket No. 76, Krajas Motion). Responses to this motion were due by August 8, 2012, and the motion was argued on August 10, 2012 (text minute entry, Aug. 10, 2012), and deemed submitted as of that date (Docket No. 112). As a result of that motion, the Franks hearing scheduled for August 10, 2012 (see Docket No. 106; Docket No. 103, Order of July 19, 2012, at 11-13, 15), was canceled (Docket No. 112). Familiarity with these prior Orders is presumed.
Defendants were indicted on June 16, 2011, in a multiple count Indictment for conspiracy by all eleven defendants to possess with intent to distribute cocaine, cocaine base, marijuana, and hydrocodone from at least November 2010, to the date of the Indictment (Docket No. 1, Indict., Count 1). Two defendants also were charged with seven individual counts of possession of cocaine, cocaine base or marijuana by George Krajas or Charles Palmer, Sr., or by both Krajas and Palmer, Sr., together (id. Counts 2-8). The Indictment also charges a forfeiture allegation against premises on Broadway in Buffalo, New York (id. at pages 7-8). The alleged possessions occurred in November of 2010, May and June of 2011 (id., Counts 2-8).
This was a portion of one omnibus motion (among several filed by co-defendants), wherein defendant Krajas sought a Franks hearing regarding omissions from the record for issuance of the wiretap Order, complaining that the agent's affidavit contains boilerplate allegations that have been rejected in other courts (Docket No. 76, Krajas Atty. Affirm. ¶¶ 29-35, 34). Krajas argued that there were material omissions in the wiretap application by not disclosing the criminal background of CS-1, the confidential source relied upon as the basis for seeking the wiretap, as well as purported personal bias of CS-1 (Docket No. 93, Krajas Memo. at 2-3). Looking at whether probable cause was established, Krajas pointed out that the affiant agent relied upon information provided by confidential sources (id. at 7; Docket No. 83, Ex. A, Aff. of Marcello Falconetti at 4-5). Krajas complained that it was not clear from the affidavit whether one or multiple confidential sources were relied upon (Docket No. 93, Krajas Memo. at 7).
The Government relied upon two informants, identified for now as CS-1 and CS-2, to support probable cause for the wiretap Order. As for CS-1, Krajas argued that the omissions on the reliability of CS-1 materially affected the application (id. at 8). As for CS-2, Krajas argued alternatively that with CS-2 the necessity argument for wiretap was removed (since it is believed that CS-1lived in Krajas' household, see Docket No. 76, Krajas Atty. Aff. ¶ 21*fn3 ) and that CS-2 was unreliable (Docket No. 93, Krajas Memo. at 8-12). In anticipation of a Franks hearing, Krajas also sought pre-hearing disclosure of all documents which might tend to show that the Government had failed to disclose all of the information required by statute (Docket No. 76, Krajas Atty. Aff. ¶¶ 36-38), listing specific categories of documents to be produced (id. ¶ 39).
The Government responded that Krajas' allegations about the facts not disclosed to the issuing judge (about CS-1 living with defendant, his theft of $6,000, and pending criminal charges against him) did not affect the Court's probable cause decision in issuing the wiretap Order (Docket No. 87, Gov't Response to Krajas Motion ¶ 28). The Government concludes that sufficient probable cause was shown for issuance of the wiretap Order (id. ¶ 30). In its supplement, the Government pointed out that the affiant agent, Marcello Falconetti, was not aware of CS-1's criminal charges before or during the wiretaps, in fact learning of the pending local court charges a year later in January 2011 (Docket No. 95, Gov't Supp'al Response at 3-4; id., Ex. A, Falconetti Aff. of Apr. 9, 2012, ¶¶ 3-4). Falconetti did not inquire further about the nature of those pending charges in 2011 because CI-1 was represented by counsel in that matter (id., Ex. A, Falconetti Aff. of Apr. 9, 2012, ¶ 4). The omission of CS-1's criminal record was not necessary for the probable cause determination that Krajas was committing drug trafficking crimes over his cellular telephone and Krajas failed to show that this omission was intentional or reckless (Docket No. 95, Gov't Supp'al Response at 4-5, Ex. B (wiretap Order)). Even if CS-1 is excluded from consideration, the Government concludes that this Court had ample information to support probable cause from CS-2, from prior purchases of cocaine by CS-2 from Krajas, from the controlled purchases from Krajas by CS-2, and CS-2 stating that Krajas used the telephone to conduct drug trafficking (id. at 5-6). (See Docket No. 103, Order of July 19, 2012, at 11-12.)
This Court granted Krajas' motion (id. at 13), stating
"Again, Krajas needs to make a substantial showing that the warrant affidavit contains a false or omitted statement; that the statement was included intentionally or recklessly; and that the statement was an integral to the probable cause finding in order to be entitled to a Franks hearing, Franks, supra, 438 U.S. 154. A review of the wiretap application shows that probable cause was established through CS-2 activities and interactions with Krajas. According to Agent Falconetti, CS-2 had made drug transactions with Krajas by calling Krajas on the cellular telephone that was to be monitored (Docket No. 83, Krajas Ex. A, Wiretap Application, Ex. C, Falconetti Aff. ¶¶ 17(a)(i), (ii), 20-34). CS-1, who Krajas now identifies and objects to omissions about his background, connects Palmer, Jr., as the supplier of cocaine to Krajas (id. ¶¶ 34(a), 16, 16(a)(i)-(ii)). CS-1 states that Krajas uses his cellular telephone to then sell these drugs (id. ¶ 16(a)(v)). But Krajas points to instances where CS-2 controlled when consensual conversations were recorded and, when not recorded, how Government agents had to rely upon CS-2's version of the conversations (Docket No. 93, Krajas Memo. at 11-12).
"Krajas has established that facts were omitted from Chief Judge Skretny in applying for the wiretap and that these statements (and the credibility findings that could be drawn from them) were integral to finding probable cause for the wiretap. Therefore, a Franks hearing will be held; a separate Order will notice that hearing." (Id.)
The Government now moves for reconsideration, arguing that this Court failed to indicate which specific facts were omitted from Chief Judge Skretny in his consideration of the wiretap application and whether those facts were integral to the finding of probable cause (Docket No. 108, Gov't Motion at 1-2). The Government also faults the Order for not addressing whether defendant made a "substantial preliminary showing" that the affiant, Federal Bureau of Investigation agent Marcello Falconetti, made omissions knowingly and intentionally or with reckless disregard for the truth, as required for a Franks hearing (id. at 2). The Government concludes that this Court did not demonstrate that Krajas had established any of the elements necessary for a Franks hearing--a false statement or material omission; made knowingly, intentionally, recklessly; and was necessary for finding probable cause (id.).
The Government contends that Falconetti was not aware of the omission Krajas points to, the fact that CS-1 lived with Krajas.