Defendant’s challenge to 18 search warrants for Franks violations fails for not showing what was false provided by the affiant and for lack of materiality to the finding of probable cause. The failures of the source documents, if any, aren’t attributable to the government. United States v. Stone, 2019 U.S. Dist. LEXIS 163252 (D.D.C. Sept. 19, 2019)*:
A. Defendant has not shown that the affidavits contained false statements that were made knowingly and intentionally, or with reckless disregard for the truth.
The fundamental problem with defendant’s motion is that he has not identified any statements in the eighteen affidavits that he claims are deliberately false or were made in reckless disregard of the truth. Defendant’s original motion completely failed to “point out specifically the portion of the warrant affidavit that is claimed to be false,” as required by Franks, 438 U.S. at 171, and it could have been denied on that basis alone. Defendant endeavored to cure the problem in his reply, but as was apparent at the hearing, his efforts still fall short. See Tr. at 26-29 (defense counsel pointed to certain paragraphs in the affidavits summarizing the conclusions of the intelligence community or Crowdstrike, but failed to explain where or how the affiants made false or reckless statements to the courts).
The statements in the affidavits simply set forth conclusions reached in the Assessment and/or the Crowdstrike report that Russia infiltrated the DNC’s computers or provided stolen DNC data to WikiLeaks. …
. . .
Stone contends that these statements are false because. Crowdstrike failed to properly preserve evidence of the DNC intrusion, and the intelligence community merely relied on Crowdstrike’s “assumptions” that Russia was behind the hack and the source for WikiLeak’s release of the DNC data in making the Assessment. Def.’s Mot. at 3. But the declarations he provides do not indicate the affidavits contained deliberate falsehoods; at most, the declarations reflect that two potential experts have expressed an opinion — based on the limited public information available to them — that some of the evidence they reviewed is consistent with a finding that the DNC hack came from the inside. See Binney Decl. ¶ 14; Clay Decl. ¶¶ 5-7.9
But it is not enough to show that an affiant may have erred in his own account of the facts, and it is certainly not enough to show that a report he summarized could be flawed in someone else’s opinion. Neither the defendant nor the declarants assert that any of the affiants knowingly mischaracterized either the Assessment or the Crowdstrike finding. And they certainly do not supply any non-conclusory reasons to believe that any affiant lied or played fast and loose with the truth. The affiants set the stage for the factual allegations related to Stone by explaining what prompted the HPSCI to launch an investigation, and where Stone fit into the inquiry.
B. The statements defendant challenges are not material of the issue of probable cause.
Even if the statements included in the affidavits were false, they were not necessary to the issuing courts’ probable cause determinations. While the warrant applications may have grown out of a larger investigation into Russian interference in the presidential election, they sought information related to the theft and release of data from the DNC computers and other targets in general, as well as alleged actions by the defendant to impede the HPSCI’s investigation into possible foreign interference in the election.
NLJ: ‘Completely Failed’: Judge Rules Against Roger Stone Again, Rejecting Motion to Suppress Evidence (“U.S. District Judge Amy Berman Jackson found that the ex-Trump campaign adviser ‘has not come close’ to reaching the legal standard to dispute search warrants in his case.”)
If the opinion is accurate, and we must presume beyond reasonable doubt that it is, why would a criminal defense lawyer waste $50-75,000 of client funds pursuing a doomed motion to suppress?