In a big defense win, last week, the Second Circuit reversed Anthony Molina’s conviction of five counts of robbery and brandishing, for two independent reasons. Judge Raggi wrote the decision. First, the Circuit held that the trial court should have conducted a Franks hearing and remanded for the court to hold one. The facts underling this issue are complicated. But, in short, the government conceded that there were errors in the warrant applications – these errors ranged from using the incorrect date of the crime, to attributing phone numbers to the wrong people, to stating there was evidence co-conspirators had communicated close in time to the robberies, when the government did not have evidence of that. The opinion explains in detail how these errors flowed together to give the magistrate the wrong impression about probable cause. Some of the highlights of the decision on this issue:
- The government argued unsuccessfully that the errors should be excused because they “could have” uncovered the challenged evidence by fixing the flaws in the warrant affidavits. The court rejected this: “Could have” is not enough because “the government cannot show that it inevitably would have discovered the challenged evidence through independent means.”
- The government also unsuccessfully argued that, when determining the materiality of the errors, the court should not only omit the incorrect information from the warrant affidavit but also add in other truthful information that the investigators knew, but hadn’t put in the affidavit. The court firmly said no. No additional information should be added; the false information must be removed, and then probable cause should be assessed.
- Other good bits: the court also noted that the fact that the warrants accessed 12 weeks of historical cell phone data meant that probable cause should be assessed with “some caution.”
Franks hearings aren’t granted that often – this decision is a must-read for any Franks argument. (But — note that the Circuit also found no Franks hearing was necessary in a different decision last week in United States v. Sandalo. In that case, Judge Jacobs dissented, criticizing the majority for placing too high a burden on a defendant seeking a Franks hearing).
Second, the circuit held that it was also reversible error for the trial court to charge that “a gun is a firearm,” in a case where the defense had argued there was insufficient evidence that the brandished item was a firearm as opposed to a pellet gun, BB gun, or other non-prohibited item. This is a good one to remember anytime there is a 924(c) possession or brandishing charge and no firearm is found.
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