A correspondent in LA sent the following dispatch from the courtroom about yesterday’s action in the Lindsey case:
There was a two hour hearing Wednesday afternoon on the defendants’ Franks motion. At the conclusion of the hearing, the judge denied the defendants’ request to suppress the evidence obtained as a result of the search warrant.
Concerning misstatements in the affidavit in support of the warrant, the judge ruled that the defendants had filed “a strong motion, but not strong enough.” The judge went on to say that the conduct of the FBI agent had been “very sloppy,” but that her actions did not rise to the level of reckless or intentional misconduct.
Applying the legal standard under Franks, the Judge “excised the most invidious portions of the” FBI affidavit.” The judge held that, stripped of inaccurate and misleading information, the affidavit still stated probable cause to support the issuance of the search warrant.
The judge also stated that he is likely to grant a defense motion to suppress and exclude the statement taken from Dr. Keith Lindsey at the time of the search in November 2008, according to Lindsey’s lawyer, Jan Handzlik. The judge said he may also grant another defense motion to exclude the statement taken from Steve Lee at the same time.
In addition, the FBI agent testified that she had exchanged “five or six” drafts of the affidavit with the prosecutors before it was finalized. The prosecutors clarified and added things to the affidavit, which the agent incorporated before filing. The defense, according to Handzlik, had sought drafts of the affidavit months ago during pre-trial discovery, but the request was refused by the prosecutors. The judge ordered the prosecutors to produce the drafts by 12 noon today.
The judge put off the hearing on other motions scheduled for today. It will be held tomorrow (Friday) at 1:30. With one exception, he said he would rule on all other motions, including the “foreign official” motion, then. The exception is the defense motion to dismiss on Brady violation grounds, which will be heard on Monday at 3:00.
The judge today ordered the government to file its opposition to the defense’s motion to dismiss the indictment due to violations of Brady v. Maryland or, in the alternative, for sanctions, by 12 noon tomorrow.
Trial starts Tuesday.
Judge A. Howard Matz is presiding over the case — U.S. v. Noriega et al, U.S. District Court, Central District of California (Western Division – Los Angeles), Case #: 2:10-cr-01031-AHM-4.