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In re Search Warrant

United States District Court, D. Columbia.

May 2, 2014

In re: Search Warrant


For UNITED STATES OF AMERICA, Plaintiff: Barak Cohen, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Public Integrity Section, Washington, DC; Heidi Boutros Gesch, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

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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], 5 F.Supp.3d 18, 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, 109 S.Ct. 2619, 105 L.Ed.2d 469 (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

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Supreme Court's reasoning in Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 230, 99 S.Ct. 1667, 60 L.Ed.2d 156 (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 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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (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 mandates a hearing if, and only if, the challenger has shown that, had " deliberate falsity or reckless ...

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