Tuesday, January 11, 2022

Third Circuit specifies appellate standard of review for denial of hearing under Franks v. Delaware

Under Franks v. Delaware, a defendant may challenge a search warrant affidavit that contains false statements or omissions. See Franks v. Delaware, 438 U.S. 154 (1978). Such challenges to veracity are explored through an evidentiary hearing known as a Franks hearing. To obtain a Franks hearing, a defendant must make a substantial preliminary showing that (1) a false statement or omission was made knowingly and deliberately, or with reckless disregard for the truth, and (2) the false statement or omission is material to the probable cause determination.

In United States v. Desu, No. 20-2962, 2022 WL 69078 (3d Cir. Jan. 7, 2022), a tax fraud prosecution, the district court denied the defendant a Franks hearing. The Third Circuit affirms. In doing so, Desu specifies the appellate standard of review for the denial of a Franks hearing: “For the first element, [the Court] will review for clear error a district court’s determination regarding whether a false statement in a warrant application was made with reckless disregard for the truth. For the second element, [the Court] will review de novo a district court’s substantial-basis review of a magistrate judge’s probable cause determination.” Id. at *1.

Incidentally, the Court already applies this standard of review to the denial of a Franks claim after a hearing. See United States v. Brown, 631 F.3d 638, 642 & n.4 (3d Cir. 2011).

In addition, Desu rejects the defendant’s claims that (1) the deliberating jury received an exhibit with missing pages, (2) the indictment failed to state an offense under Marinello v. United States, 138 S. Ct. 1101 (2018), (3) the court excluded defense witnesses as irrelevant under Rule 401, (4) the government constructively amended of the indictment, and (5) the court miscalculated the tax loss under Sentencing Guideline § 2T1.1 cmt. n.3.

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