D.P.R.: Def’s declaration of a fact dispute didn’t rise to a Franks violation

Defendant’s own declaration that he was outside the apartment when the affidavit said he was inside was just a swearing match, and it didn’t raise a sufficient Franks challenge. United States v. Pierret-Mercedes, 2023 U.S. Dist. LEXIS 79252 (D.P.R. May 5, 2023) (R&R).

Defendant anticipates a Franks motion, but he can’t subpoena records under Rule 17 in anticipation of filing that motion until a hearing is set. He can file a motion on “information and belief,” and, if it states enough, then a subpoena can be issued for the hearing. [Keep in mind that hardly any Franks motions get a hearing because they fail on their face.] United States v. Anderson, 2023 U.S. Dist. LEXIS 79328 (W.D. Pa. May 3, 2023).

Most of the inconsistencies alleged here for a Franks claim rely on speculation and aren’t enough. United States v. Cantizano, 2023 U.S. App. LEXIS 11210 (9th Cir. May 8, 2023).*

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