E.D.La.: Is a USMJ neutral and detached when the target of the search warrant the judge just signed is allegedly having an affair with the judge’s husband but the defense can’t prove the judge knew?

Is a USMJ neutral and detached when the target of the search warrant the judge just signed is allegedly having an affair with the judge’s husband but the defense can’t prove the judge knew? True or not, that has no affect on the outcome under the good faith exception. No hearing permitted because it’s a fishing expedition. Warrant sustained. The judge’s husband was a lawyer and called to the scene of the search. (He was not listed as counsel on the case.) United States v. Crinel, 2015 U.S. Dist. LEXIS 98392 (E.D.La. July 27, 2015):

The issues on which Ms. Crinel requests an evidentiary hearing are generally divided into two categories. First, Ms. Crinel seeks to establish what the Government knew about the existing relationships between her and Mr. Roby at the time of the search warrant. Second, Ms. Crinel seeks to determine whether Judge Roby was neutral and detached when she signed the search warrant.

Regarding the first category—what the Government knew—Ms. Crinel essentially makes three allegations: (1) the Government was aware Ms. Crinel and Mr. Roby served together on the board of directors for a non-profit organization at the time Judge Roby issued the search warrant; (2) the Government became aware during the challenged search that Mr. Roby was Ms. Crinel’s attorney; and (3) the Government learned in June 2014, i.e., after the search, of an extramarital relationship between Mr. Roby and Ms. Crinel. The first allegation is not in dispute. Moreover, even if the second and third allegations are accepted as true [and the court takes no position], they would not affect the Court’s conclusion that officers acted in good faith, as explained more fully below. In other words, these allegations do not constitute “facts which, if proven, would justify relief.” Therefore, an evidentiary hearing is not warranted with respect to this category.

Regarding the second category—whether Judge Roby was neutral and detached—Ms. Crinel insists she is entitled to an evidentiary hearing to determine “the extent of [Judge] Roby’s knowledge of the relationships between [Mr. Roby] and [Ms. Crinel] prior to her signing the search and seizure warrants ….” It is well established, however, that “[h]earings on motions to suppress are not discovery proceedings, but are instead designed for the presentation of evidence in support of factual allegations ….” It is unclear from her memoranda exactly what additional evidence—if any—Ms. Crinel would present or attempt to elicit to establish Judge Roby’s knowledge of the relationships between Ms. Crinel and Mr. Roby. In one memorandum, Ms. Crinel’s counsel avers he has heard “unconfirmed statements” that Judge Roby knew of the alleged affair between her husband and Ms. Crinel. Such conjecture is clearly insufficient to warrant an evidentiary hearing as it does not even rise to the level of a factual allegation. Similarly, Ms. Crinel speculates that certain emails between Ms. Crinel and Mr. Roby “indicate[] that this type of affair would be difficult to conceal.” Again, this speculation does not constitute an allegation of fact. Furthermore, the emails cut both ways, as both parties acknowledge they have gone to great lengths to conceal their relationship. To the extent Ms. Crinel argues a hearing is warranted to determine whether Judge Roby was aware of the common board membership between Ms. Crinel and Mr. Roby, that fact is essentially conceded by the Government and assumed to be true for purposes of this motion. Therefore, no evidentiary hearing is needed to establish this fact. Finally, Ms. Crinel argues a hearing is necessary to determine if Judge Roby was aware her husband represented Ms. Crinel at the time she signed the warrants. Yet Ms. Crinel makes no factual allegation that Judge Roby was aware of the representation.