This post has everything not already up about what happened today except an account of the FBI agent’s testimony, which was fascinating and will be posted later in separate posts.
Here’s what the Judge said in denying the motion to dismiss: The motion is whether Judge Lackey asking for money created the crime. To obtain dismissal for outrageous government conduct, the defendant must not have participated in any active way. They did. The defendants are unable to show they are merely passive participants. It is clear they were active participants.
Keker asks for more witnesses, which the judge denies, and then he denies the motion to dismiss. This was the point for the lunch break.
In the afternoon hearing, the court called up the motion to suppress the evidence from the wiretaps and the search. Keker began, arguing that to get an evidentiary hearing, he must show an omission and falsehood in the affidavits, and that the full picture equals no probable cause. To resolve that, we have to hear the testimony of Agent Delaney. If an honest affidavit had been done, there was no probable cause from the first affidavit.
Sanders responded for the government. He said there must be a substantial showing and nothing in the motion suggesting dishonesty.
The judge responded that you don’t have to show dishonesty, just an intentional disregard for the facts.
Sanders;: If you take everything in our motion, if you put everything in from every transcript of every call, there would be probable cause. For instance, Keker had argued that it wasn’t in one of the affidavits that P.L. Blake didn’t know about the Lackey order in a first call, because it was clear from a later call that P.L. Blake had learned about the order. By the time the affidavit was done, they knew that P.L. Blake had learned about it, and thus the affidavit didn’t require that information.
Judge: Did you put in the affidavit that P.L. Blake knew what the money was about? Yes.
Sanders argued that when Balducci says on the transcripts, "Only you and I know what is going on, " the agent did not have to put that in the affidavit for it to be honest because they knew this was not true –from the Patterson conversations, they knew others knew about what was going on.
Judge: Would the government stipulate that statements the defense says were made were left out in a hypothetical affidavit on which the judge could rule whether probable cause was present?
Sanders: Yes.
Keker: This doesn’t meet the standard in Franks. The government is now saying some was intentionally left out and not negligently or recklessly. We have to have Agent Delaney up there to deal with this.
Judge: Will allow a short exam of Agent Delaney because this issue goes to the heart of the case.
The Government called Delaney and gave Keker the Jenks material relating to Delaney’s testimony. I am going to detail that testimony in a separate post or posts.
After the agent testified, Judge Biggers said: In these motions concerning the adequacy of probable cause for these wiretaps and a search, the defendants attack the adequacy of probable cause by bringing out the alleged omissions and alleged false statements. The law is “look at probable cause with the statements included.” "What I would like to see from counsel on both sides. I have taken notes, but would like a memorandum listing omitted and false statements from the affidavits. " He wants them listed, and wants one from the defense and from the government. The judge went on to say there is also still a question in his mind about probable cause. Both parties have agreed that an aggrieved party has standing to complain. But what can they complain about? There is no question the three defendants have standing to complain about the legality of the Patterson wiretap, for instance. Can they complain only about whether there was probable cause about Patterson, or can they insist there be probable cause about all three defendants? Must there be probable cause about all three defendants, or only Patterson? He wants a memorandum about that and the list for the affidavit by the end of the day Monday.
He then says he will start Thursday at 9:30 with the motion to dismiss counts 2, 3, and 4, the motion to exclude 404b (other crime) evidence, the motions to sever, and the motion to change venue, in that order.
As noted, I’ll detail the FBI agent’s story in another report.
