                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

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                                    )
In re: Search Warrant               )                                00-MJ-138 (JMF)
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                         MEMORANDUM OPINION AND ORDER

   I.      Background

        On November 26, 2013, this Court granted Robert Berman’s Motion to Unseal Search

Warrant Affidavit(s) [#21] and ordered that the docket in this then-thirteen year-old search

warrant case be unsealed in full. See In re: Search Warrant, 00-MJ-138 [#33], 2013 WL 6184458

(D.D.C. Nov. 26, 2013) (providing a detailed account of the prior procedural history in this

matter). The Court also interpreted part of Berman’s motion as requesting the release of related

grand jury materials under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure, and it

instructed the government to “advise the Court in writing whether: 1) the records still exist; and

2) whether any or all of them have been made available to Berman.” Id. The government

promptly notified the Court that it had several hundred pages of grand jury transcripts and related

materials, see Notice of Grand Jury Materials Still in Existence [#36], and it volunteered to give

Berman all of those documents except “internal government memoranda and notes, all of which

almost certainly constitute privileged work product.” Government’s Reply to Petitioner’s

Response to Order to Show Cause [#39] at 3. The Court entered the government’s proposed

order, see Order [#40], and then required Berman to show cause “why this matter cannot now be

closed.” February 18, 2014, Minute Order to Show Cause.
   II.      Grand Jury Materials Related to Other Pending Cases Cannot Be Released in
            This Case

         Berman is a defendant in on-going civil litigation brought by the government, Civil

Action No. 03-96, and he also has a proceeding before the Merit Service Protection Board

(“MSPB”). See In re: Search Warrant, 2013 WL 6184458, at *1-2, *3, n.6. In his latest filing,

Berman persists in his need for all grand jury-related materials, including those that the

government has withheld under the work product privilege. See generally Robert A. Berman’s

Response to Order to Show Cause [#42]. He believes that several documents were simply not

disclosed even though they are known to exist because of their mention in various other filings.

See id. at 3-6. He also argues that Federal Rule of Evidence 502 requires the release of at least

some of the work product because it has been disclosed in another proceeding, see id. at 6-7, and

he alleges that the work product privilege is also waived because the government perpetrated a

fraud upon this Court in the original search warrant application in 2000. Under Berman’s theory,

the crime-fraud exception to the work product privilege therefore applies. See In re Grand Jury

Proceedings, G.S, F.S., 609 F.3d 909, 912 (8th Cir. 2010) (noting that the crime-fraud exception

of United States v. Zolin, 491 U.S. 554, 563 (1989) also applies to the work product privilege).

         The government has not filed a response. However, it has previously noted that “[t]o the

extent that Berman seeks to obtain any materials beyond the grand jury materials [disclosed by

the Court’s Order], those requests should be submitted in the normal course of Berman’s MSPB

and civil litigation.” [#39]. The Court agrees with the government that, insofar as the requested

grand jury disclosure is unrelated to the present search warrant case, Berman cannot obtain from

this Court the relief he seeks. Under the Supreme Court’s reasoning in Douglas Oil Co. v. Petrol

Stops Northwest, 441 U.S. 211, 230 (1979), this Court does not believe it is in the best position

to have the “special knowledge of the civil actions” to consider Berman’s request for further

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grand jury document releases as they relate to his ongoing MSPB and civil litigation. Instead, a

petition directed to Judge John D. Bates of this Court in the civil action and a separate

miscellaneous action pursuant to Local Rule of Criminal Procedure 6.1—for the MSPB

litigation—would be more appropriate. After all, this case is only about the search warrant issued

on March 15, 2000, and it would be inappropriate for Berman to use it as a vehicle to seek relief

more closely related to other, on-going cases, where he has clear avenues for relief open to him.

       III.      Berman Appears to Seek a Franks v. Delaware Hearing

              For the past fourteen years, Berman has repeatedly claimed that Special Agent Joseph D.

Crook, Jr. “engaged in a deliberate effort to mislead this Court as to the purported facts that

supposedly establish the probable cause for the issuance of the warrant.” Robert Berman’s

Response to the Government’s Supplemental Motion to Seal Affidavit Supporting Application

for Search Warrant [#10] at 2; see also [#21] at 5 (“All such statements would have been known

to be false at the time they were made.”); [#42] at 8 n.2 (“Misconduct would include, but [is] not

limited to, the knowingly false statements in Agent Crook’s affidavit [37 at 4-6] . . .”). In at least

one motion, Berman argued that he needed the search warrant application unsealed so he could

exercise his “constitutional right to challenge the permissibility of the search if the warrant was

based on an affidavit containing knowingly false statements or [statements made] with a reckless

disregard for the truth.” Reply to Response [sic] Motion to Unseal Search Warrant Affidavit(s)

[#25] at 5 (sealed) 1 (citing Franks v. Delaware, 438 U.S. 154 (1978)).

              Although Berman is not always entirely clear, given his pro se status, this Court can only

interpret his statements as a request to proceed under Franks. That case outlined a bifurcated

procedure where a challenger first offers specific allegations about falsities in the warrant

application that are supported by proof. Franks, 438 U.S. at 171. The Fourth Amendment then
1
    This filing is available in a public, redacted form at [#34-3].

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mandates a hearing if, and only if, the challenger has shown that, had “deliberate falsity or

reckless disregard” not been used in the warrant application, there would have been insufficient

probable cause to issue the warrant:

       To mandate an evidentiary hearing, the challenger's attack must be more than
       conclusory and must be supported by more than a mere desire to cross-examine.
       There must be allegations of deliberate falsehood or of reckless disregard for the
       truth, and those allegations must be accompanied by an offer of proof. They
       should point out specifically the portion of the warrant affidavit that is claimed to
       be false; and they should be accompanied by a statement of supporting reasons.
       Affidavits or sworn or otherwise reliable statements of witnesses should be
       furnished, or their absence satisfactorily explained. Allegations of negligence or
       innocent mistake are insufficient. The deliberate falsity or reckless disregard
       whose impeachment is permitted today is only that of the affiant, not of any
       nongovernmental informant. Finally, if these requirements are met, and if, when
       material that is the subject of the alleged falsity or reckless disregard is set to one
       side, there remains sufficient content in the warrant affidavit to support a finding
       of probable cause, no hearing is required. On the other hand, if the remaining
       content is insufficient, the defendant is entitled, under the Fourth and Fourteenth
       Amendments, to his hearing. Whether he will prevail at that hearing is, of course,
       another issue.

Id. at 171-72.

       It is far from clear, however, that this Court has any authority to actually proceed under

Franks, let alone provide any relief even if a Franks violation has occurred. At the same time,

this Court is also troubled by the prospect that—if Agent Crook did intentionally or recklessly

mislead this Court in order to have the original search warrant issued—this Court would be

powerless to do anything in response; this would leave Berman with no remedy for a violation of

his Fourth Amendment rights. After all, the Supreme Court made clear in Franks that “the Fourth

Amendment requires that a hearing be held” if the target of a search warrant can meet his burden.

Franks, 438 U.S. at 156. Thus, unlike the exclusionary rule, which is a court-created remedy to

address an underlying constitutional violation, a Franks hearing is itself required by the Fourth

Amendment under certain circumstances.



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       This Court is aware of only two remedies for a Franks violation—neither of which is

applicable in this case. The ordinary remedy is application of the exclusionary rule and

suppression at trial of any evidence illegally obtained. See Franks, 438 U.S. at 171. In at least

one case, a magistrate judge remedied a Franks violation by ordering the return of property that

was seized as a result of the invalid search warrant. See generally In re Search Warrants Served

on Home Health and Hospice Case, Inc., 121 F.3d 700 (4th Cir. 1997) (affirming a ruling by the

magistrate judge, who issued the underlying warrant, that a Franks violation had occurred and

that, pursuant to a motion to return property under then-Rule of Criminal Procedure 41(e) (now

Rule 41(g)), the property had to be returned). Similarly, the D.C. Circuit has suggested that an

appropriate remedy for a Franks violation may be a return of property. See In re Search Warrant

Dated July 4, 1977, for Premises at 2125 S St., Northwest, Washington D.C., 667 F.2d 117, 136-

37 (D.C. Cir. 1981).

       Here, however, Berman was not criminally charged—thus there is no evidence to

suppress—and he has not alleged that any of his property is still being held by the government.

The Court is therefore unsure of whether it has any authority to proceed under Franks. It may

well be that Berman has a remedy before Judge Bates in the on-going civil litigation—or that

Judge Bates has already adjudicated this very issue. Nevertheless, the Court is troubled that

Berman may have no remedy and that this Court would therefore be powerless to ensure that

affidavits submitted in support of search warrants are truthful. As the Supreme Court recognized,

“[t]he requirement that a warrant not issue ‘but upon probable cause, supported by Oath or

affirmation,’ would be reduced to a nullity if a police officer was able to use deliberately

falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was

able to remain confident that the ploy was worthwhile.” Franks, 438 U.S. at 168. It may well be



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that this Court’s contempt powers are sufficient to allow it to proceed under Franks—but it is far

from clear. See id. at 169 (suggesting that “sanctions of a perjury prosecution, administrative

discipline, contempt, or a civil suit are not likely to fill the gap” if the exclusionary rule is not

extended to Franks violations, and thus implying that those other remedies still exist). It is

similarly unclear whether Berman may proceed before Judge Bates on his Franks allegations in

the ongoing civil litigation.

       IV.      Conclusion

             For the reasons stated above, it is, hereby, ORDERED that the Federal Public Defender

for the District of Columbia is appointed amicus curiae; 2 and

             It is further ORDERED that amicus and Robert Berman shall file separate briefs by June

20, 2014, indicating: 1) what authority—if any—exists that would allow this Court to proceed

under Franks v. Delaware, 438 U.S. 154 (1978); 2) whether Berman has a remedy before Judge

Bates under Franks; and 3) whether Judge Bates has already adjudicated the issue of the veracity

of Special Agent Joseph D. Crook, Jr.’s statements in the search warrant affidavit. The

government shall file an opposition by July 11, 2014, and amicus and Berman shall file separate

reply briefs by July 18, 2014.

             SO ORDERED.
                                                                                            Digitally signed by John M.
                                                                                            Facciola
                                                                                            DN: c=US,
                                                                                            email=john_m._facciola@dcd.us
                                                                                            courts.gov, o=United States
                                                                                            District Court for the District of
                                                                                            Columbia, cn=John M. Facciola
                                                                                            Date: 2014.05.02 09:08:31 -04'00'
                                                               ___________________________________
                                                               JOHN M. FACCIOLA
                                                               UNITED STATES MAGISTRATE JUDGE



2
    Due to preexisting commitments, amicus has requested that no briefing be due before mid-June.

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