Federal Criminal Defense Attorney Hope Lefeber Discusses Recent Third Circuit Case Dealing With Exclusionary Rule, Sufficiency of Evidence and Jury Charge

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In U.S.A. v. Franz, 2014 WL 5565457, the Third Circuit upheld a search warrant finding that police officer did not act deliberately, recklessly, or with gross negligence in executing facially deficient warrant.

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Hope Lefeber

The Third Circuit Court of Appeals, in U.S. A. v. Franz, 2014 WL 5565457, (3d Cir, Nov. 4, 2014), held that the exclusionary rule applies when agents executing an otherwise-valid search warrant fail to provide to the homeowner a list of items sought. The appeal also raises questions about a separate warrant for the search of Franz's computer and about several evidentiary issues, including whether evidence that was shown to the jury but later stricken from the case was prejudicial and whether the remaining evidence was sufficient to send the case to the jury.

The defendant, Robert Franz, was investigated by the Bureau of Land Management (“BLM”) in connection with the theft of paleontological items. A member of the BLM infiltrated Franz’s group and learned enough information to justify a search warrant for Franz’s home. The warrant was issued and contained an appendix listing the items sought by authorities, including a wooly mammoth tusk and other related items. When the authorities executed the warrant, they showed Franz the warrant, but not the appendix. And, when they entered his house, they discovered child pornography on the walls and in plain view. The BLM received advice from federal prosecutors and obtained a second search warrant, specifically permitting them to search for further pornographic materials.

Franz pleaded guilty to theft of government property and conspiracy to defraud the United States. Franz was then indicted on child pornography charges and moved to suppress all evidence obtained from the two warrants. The District Court ruled that Franz’s Fourth Amendment rights were violated because the initial warrant used was facially invalid, since Franz was not given a copy of the appendix. But the District Court declined to apply the exclusionary rule, holding that “no appreciable deterrent effect would be gained by applying the exclusionary rule.” Franz filed a motion for reconsideration, in which he also challenged the second warrant issued. The District Court denied the motion.

During Franz’s trail, an issue arose regarding a piece of evidence, namely pamphlets containing pornographic images of children. The pamphlets had copyright information printed on the covers identifying Denmark as their origin. Franz’s motion in limine to exclude this evidence—on the grounds that this alone was insufficient to satisfy the foreign commerce element of 18 U.S.C. § 2252(a)(4)(B)—was denied and the pamphlets were shown to the jury. However, before the jury charge was issued, the District Court ruled that the pamphlets should be struck from the record and instructed the jury that they were “not proper evidence” to consider.

Following Franz’s conviction, he moved for a judgment of acquittal, citing the issue with the pamphlets being shown to the jury and alleging insufficient evidence to support his conviction. The District Court denied Franz’s motion. Franz appealed his conviction and challenged the search warrants, the pamphlets, and the sufficiency of the evidence. The Third Circuit upheld each of the District Court’s rulings.

Firstly, the District Court, relying heavily on Herring v. U.S., 555 U.S. 135 (2009), ruled that the BLM agent’s conduct during the search was “objectively reasonable,” since he sought legal advice, relied on an ambiguous magistrate judge’s order, verbally explained the search to Franz, and permitted Franz to remain on site during the search. Moreover, the Court ruled that the BLM agent had “no intention of concealing the subject matter of the warrant or the information on [the attachment].” Regarding the second warrant, since Franz only challenged the warrant in his motion for reconsideration, he waived the argument for purposes of appeal.

Next, the Court considered whether the District Court abused its discretion by initially allowing the pamphlets to be published to the jury and later ruling the materials inadmissible. The pamphlets were introduced as evidence of the “possession” charge alone and the other pornographic materials were introduced as evidence of the “receipt” charge. The District Court employed a split verdict sheet; Franz was convicted of receiving child pornography and was acquitted of possessing child pornography. Since he was acquitted of the only charge relating to the pamphlets, the Third Circuit affirmed the District Court’s decision.

The final issue the Court considered was whether sufficient evidence existed to support Franz’s conviction. The Court ruled (1) that the jurisdictional nexus was satisfied by virtue of some images originating from the internet; (2) that mens rea existed by virtue of Franz viewing the images online and then downloading them onto an external hard drive; and (3) that the images involved sexually explicit content involving minors. Franz’s arguments against his conviction were ruled “wholly unpersuasive” and the Third Circuit affirmed the judgment of conviction.

About Hope Lefeber:

In practice since 1979, Lefeber is an experienced and aggressive criminal defense attorney in Philadelphia. As a former Enforcement Attorney for the U.S. Securities & Exchange Commission, Lefeber uses the knowledge she gained while working for the government to best defend her clients facing serious state and federal charges related to drug offenses and white collar crime, including business and corporate fraud, mail and wire fraud, money laundering, financial and securities fraud, and tax fraud.
A member of the invitation-only National Trial Lawyers Top 100, Lefeber has been recognized by Thomson Reuters as a 2014 Super Lawyer. She has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other Philadelphia criminal defense attorneys and has been quoted by various media outlets, from TV news to print publications.

Learn more at http://www.hopelefeber.com/

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