The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
ORDER ADOPTING REPORT AND RECOMMENDATION
On June 18, 2012, United States Magistrate Judge Mikel H. Williams issued a Report and Recommendation, on the parties' Cross-Motions for Summary Judgment concerning the individual Defendants remaining in this case. Any party may challenge a Magistrate Judge's proposed recommendation by filing written objections within fourteen days after being served with a copy of the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1)(C).*fn1 The district court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The district court may accept, reject, or modify in whole or in part, the findings and recommendations made by the Magistrate Judge. Id.; see also Fed. R. Civ. P. 72(b). Both sides filed objections to the Report and Recommendation which the Court has considered de novo and finds as follows.
The factual and procedural background in this matter has been thoroughly and properly set forth in the Report and Recommendation ("Report"). (Dkt. 336.) As such, this Court incorporates that discussion in this Order and will restate the same only as necessary to this Court's discussion of the matters considered in this Order. The Cross-Motions for Summary Judgment considered here are those pertaining to the Plaintiff's Fourth Amendment claim against the individual Defendants FBI Agents Michael Gneckow and Scott Mace.
The Plaintiff's Fourth Amendment claim is premised on two arguments: a Malley claim and a Franks claim. (Dkt. 310 at 6) (Dkt. 340 at 1.) Both claims assert the Defendants' failed to satisfy the materiality and impracticability prongs of the material witness statute. See 18 U.S.C. § 3144. The Malley claim alleges the warrant was facially deficient such that no reasonable officer could have believed the warrant established probable cause. See Malley v. Briggs, 475 U.S. 335 (1986). The Franks claim requires the Court to determine whether a substantial preliminary showing has been made that the warrant affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement or material omission in the warrant affidavit, and that the allegedly false statement was necessary to the probable cause finding. See Franks v. Delaware, 438 U.S. 154 (1978). The Report recommends that Plaintiff be granted summary judgment as to the Franks claim against Agent Gneckow. As to Agent Mace, the Report suggests that this Court undertake a de novo review of the warrant application to determine whether probable cause to arrest Plaintiff had been established. (Dkt. 336 at 41.) The Court will take up the parties objections as to each of the individual Defendants in turn below.
1. Cross-Motions for Summary Judgment as to Agent Gneckow
A. Defendants' Objections
i. Improper Finding of Reckless Disregard for the Truth*fn2
The Report concludes that summary judgment should be granted in favor
of the Plaintiff on the Franks claim against Agent Gneckow. (Dkt. 336
at 19.) Essentially, the Report found the Plaintiff had made a
substantial showing that Agent Gneckow made a deliberate falsehood or
recklessly disregarded the truth in the warrant affidavit and that
without the false information the affidavit was insufficient to
establish probable cause. (Dkt. 336 at 22.) In particular, as to the
impracticability prong of the material witness statute.*fn3
The Report discusses the misrepresentations concerning
Plaintiff's plane ticket; that it was a first class, one-way ticket to
Saudi Arabia, costing $5,000 when in reality it was a round trip
ticket with no scheduled return date, coach class, costing
approximately $2,000. (Dkt. 336 at 21.) In addition, the Report points
to several omissions from the warrant application: 1) Plaintiffs prior
cooperation with the FBI, 2) Plaintiff was a native-born United States
citizen with a wife, son, and other family living in the United
States, 3) Plaintiff was not informed that his testimony may be needed
or that he should not travel, 4) Plaintiff was not told to
inform the FBI prior to any oversea's travel, and 5) Plaintiff had not
been contacted by the FBI in over eight months. (Dkt. 336 at
Defendants challenge the Report's conclusion that the warrant application did not meet the second requirement of the material witness statute, probable cause as to whether it is impracticable to secure the presence of the person by subpoena. (Dkt. 342 at 7.) Defendants argue the record does not support finding Plaintiff had made a "substantial showing" that Agent Gneckow was reckless in failing to include material facts in the warrant application as to whether a subpoena would not have secured the Plaintiff's presence at the al-Hussayen trial in 2003. (Dkt. 342 at 13.) The Report, the defense argues, improperly analyzed the impact of: 1) Agent Gneckow's failure to ascertain the purpose for the Plaintiff's travel to Saudi Arabia, 2) the omission of Plaintiff's ties to the United States, and
3) the prosecutor's role in deciding whether to seek a material witness warrant. (Dkt. 342 at 9-12.) Plaintiff counters that the Report properly analyzed the impracticability prong of the material witness statute in concluding that the omitted information -- i.e. past cooperation, citizenship, and family/community ties -- was relevant to the probable cause determination. (Dkt. 348 at 6.) Further, the Plaintiff asserts the Report properly concluded that Agent Gneckow acted intentionally or recklessly in omitting material facts and making false statements in the warrant application. (Dkt. 348 at 1.) This Court has reviewed de novo the record in this matter as well as the parties' arguments and finds as follows.
As to the facts surrounding the plane ticket, the Defendants disagree with the Report, arguing Agent Gneckow received the information he ultimately put in the warrant affidavit from ICE Agent Alvarez on March 13, 2003. Defendants point out that Agent Gneckow called the FBI Agent assigned to Dulles International Airport to confirm the Plaintiff was scheduled to leave for Saudi Arabia and also the precise date and time of his scheduled departure; all of which was accurate as stated in the warrant. (Dkt. 342 at 14-15.) In addition, Defendants state, Agent Gneckow did not know the other details concerning the Plaintiff's plane ticket -- its price, first class, and round trip -- were inaccurate as he relied upon ICE Agent Alvarez's information.
Although he failed to confirm all of the details concerning the plane ticket, the Court recognizes that Agent Gneckow did confirm the scheduled departure date and time for the flight. As to the details concerning the ticket that were in error, with the exception of the fact that the ticket was not round trip, the Court generally agrees that inaccurate details, in and of themselves, would not support a finding of recklessness. The particular facts about the plane ticket, however, are not the only ones relevant to the issue presented here. (Dkt. 336 at 21-28.) The importance of the facts concerning the flight taken together with the material omissions discussed below is the basis upon which this Court is in agreement with the Report's finding of a reckless disregard for the truth and the necessity of those omitted facts to the probable cause finding. (Dkt. 336 at 22-23) (discussing "the totality of the information in the affidavit juxtaposed with the information about the plane ticket.")
As to the facts omitted from the warrant affidavit, this Court agrees with the Report that they were material and necessary to the probable cause finding and their omission was reckless. Agent Gneckow had been conducting a three-year investigation into Mr. alHussayen's activities which included knowledge of and contact with Plaintiff. In particular, this Court finds the omissions that the Plaintiff 1) is a United States citizen with familial and community ties to the United States and 2) had previously cooperated with law enforcement were material and necessary to the Magistrate Judge's probable cause determination. Based on his involvement in the al-Hussayen investigation, the Court agrees that these omitted facts were known to Agent Gneckow and it was reckless for him to have not included them in the warrant affidavit. The defense argument that the investigation was as to Mr. al-Hussayen and not the Plaintiff is unpersuasive. Agent Gneckow's investigation clearly included contacts, interviews, and knowledge of the Plaintiff such that he would have or should have known of the omissions in the affidavit. In addition, this Court agrees that the omissions were material and had they been known to the Magistrate Judge reviewing the warrant they certainly would have gone against finding probable cause.
Moreover, without the omissions, the warrant affidavit is drafted such that it misrepresents the facts and circumstances surrounding the Plaintiff and the impracticability of securing his presence by subpoena at the trial. As the Report describes, without the relevant information concerning the Plaintiff that was omitted, the affidavit makes it appear as if the Plaintiff was a citizen of Saudi Arabia, was involved with money transfers from a suspected terrorist, and was fleeing the country shortly after those he was involved with had been indicted and/or arrested. (Dkt. 336 at 23-27.) This is particularly troubling for the Court. When presented with a warrant application, courts are tasked with making a decision that necessarily is based upon the information presented to it by law enforcement. Undoubtedly law enforcement officers who bring a warrant application to a court truly believe the warrant is lawfully sought. The problem in this case is that the failure to include the omitted information cast an incomplete picture of the individual and the surrounding circumstances such that the affidavit misrepresented the true nature of the situation and the Plaintiff himself. This evidences the reckless disregard for the truth as to Agent Gneckow.
Further, AUSA Lindquist's review of the warrant application does not cure the Franks violation here. AUSA Lindquist was in no better position that the Magistrate Judge to evaluate probable cause given he, like the Magistrate Judge, did not know the omitted material facts which this Court has determined Agent Gneckow should have included in the warrant application and his failure to do so was a reckless disregard for the truth. (Dkt. 310-4, Ex. 2, Gneckow Dep. at 201) (Dkt. 310-4, Ex. 7, Lindquist Dep. at 17, 43-44, 104.) Thus, the fact that AUSA Lindquist reviewed the warrant application does not absolve Agent Gneckow from liability.
As to the Defendants' objections regarding the Report's statement that Agent Gneckow failed to further investigate the information he received from Agent Alvarez, this Court clarifies that the conduct found to have violated Franks here is not the failure to conduct a further investigation, in and of itself, but the fact that the omissions from the warrant application would have negated the finding of probable cause and the misrepresentation of the facts and circumstances in the drafting of the warrant application. It was reckless for Agent Gneckow to have not included those material omissions in the warrant application given what he knew from his investigation. (Dkt. 336 at 26-29.) That some of the information included in the warrant application ultimately turned out to be false does not, in and of itself, amount to a Franks violation. This Court recognizes that in Franks, the Court stated that "truthful" does not mean that "every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants." Franks, 438 U.S. at 165. The critical element is that the "information put forth is believed or appropriately accepted by the affiant as true." Id. Here Agent Gneckow verified certain of the facts concerning the flight -- date, time, and destination -- thus it seems reasonable for him to have believed all of the information given to him by Agent Alvarez was correct even though he did not verify all of the information about the Plaintiff's ticket -- price, class, and round trip. Again though, the Franks violation in this case is the reckless disregard for the truth stemming from the omission of material facts in the warrant application.
The Report does discuss avenues in which Agent Gneckow could have verified the facts concerning the ticket information and/or other efforts he could have made to further investigate information possibly relevant to the warrant application; including verifying the ticket information and/or investigating the Plaintiff's purpose for traveling to Saudi Arabia. (Dkt. 336.) This Court clarifies that it is not concluding that Agent Gneckow was required to conduct further investigation. See Ewing v. City of Stockton, 588 F.3d 1218, 1227 (9th Cir. 2009) (stating once an officer has probable cause he or she is not required to continue to investigate or seek further corroboration.). Here, Agent Gneckow's action were reckless because the omissions were basic information about the Plaintiff known to Agent Gneckow which were obviously material to the Magistrate Judge's probable cause determination. To this end, the Court agrees with and incorporates herein the Report's discussion concerning the misleading and highly suggestive picture of the facts and circumstances surrounding the Plaintiff painted in the warrant application. (Dkt. 336 at 23-28.) What Agent Gneckow knew and left out of the warrant application, this Court finds, constitutes a reckless disregard for the truth and/or was designed to mislead the Magistrate Judge in his probable cause determination. Franks, 349 F.3d at 67-68. ...