D.Mass.: Court sua sponte reconsiders denial of Franks challenge and grants it

The court sua sponte reconsiders its prior denial of a motion to suppress for a Franks violation and grants it. The critical paragraph in the affidavit identifying defendant was clearly misstated. United States v. Hallman, 2021 U.S. Dist. LEXIS 191780 (D.Mass. Oct. 5, 2021)*:

This Court’s decision to reconsider and revise the meaning assigned to Paragraph 19 is necessary because of the obfuscatory way the government crafted it, coupled with the manner in which it wielded this critical language in its argument to this Court. Combined with the remainder of the affidavit (and, in particular the paragraph preceding it describing Hallman), Paragraph 19 reasonably reads as a statement that Hallman’s 6’5″ height and thin build match that of the suspect. This is how the Court read it before hearing the Agent’s testimony. This is how the government urged the Court to read it. This is how the Court concludes the Magistrate Judge must have read it, for doing so was a prerequisite to finding probable cause. But, this erroneous understanding was possible only because the government omitted from the November application any clear statement of the actual meaning the Agent intended to convey in Paragraph 19. The government failed to inform the Magistrate Judge that Hallman did not “match”—specifically and distinctively—the height and build of the suspect. The government also failed to disclose to the Magistrate Judge that the Agent had not reached that conclusion and was incapable of so concluding based on the available evidence. Indeed, the affidavit omitted disclosing that the Agent could not have determined, and did not determine, the height of the suspect at all.

This additional information is essential to accurately understand Paragraph 19. Its omission by the government was materially misleading. Because the November application’s showing of probable cause as to Hallman rises and falls with Paragraph 19—a view expressed by the Court previously and endorsed by both parties—the omission of information critical to an understanding of that paragraph was necessarily at least reckless. Burke, 405 F.3d at 81-82.