09/18/2009 57 TRAVERSE Petition and Motion For Evidentiary Hearing by Joseph Mangiapane, Jr.. (nms) (Entered: 09/18/2009)
---------------
Doc 57 OCR extract
DEFENDANT JOSEPH MANGIAPANE, JR.'S TRAVERSE PETITION AND
MOTION FOR EVIDENTIARY HEARING
Comes now the Defendant, Joseph Mangiapane, Jr., representing himself pro se, and submits the following Traverse Petition regarding the search warrants and affidavits served in this case and related cases, and to suppress any evidence which evidentiary hearing reveals to be the product or result of information in the affidavits supporting said warrants which were known by the affiant and/or law enforcement/government agents to be inaccurate, false, misrepresented, or were included in said affidavit with reckless disregard for their truth or accuracy. Mr. Mangiapane has standing to pursue this Petition pursuant to his Fifth Amendment right to due process and to a fair trial and, to the extent any of the wrongfully obtained evidence led to evidence protected by the Mr. Mangiapane's Fourth Amendment protection against illegal searches and seizures. Mr. Mangiapane also moves the Court for an evidentiary hearing to consider his Petition.
STATEMENT OF FACTS
The prosecution has, so far, presented Defendant Joseph Mangiapane with many tens of thousands of pages of documentary evidence called discovery. The defense believes that the vast amount of this material was taken from the personal computers of Matt Brown and Pawel Dynkowski. Much of the material taken from these computers is personal in nature, and not at all relevant to the question of Mr. Mangiapane's guilt or innocence. More than half the documents related to stock deals and transactions of Dynkowski and Brown, unrelated to any matter involving or referring to Mr. Mangiapane. Other material, including certain books and records belonging to A1S, a stock brokerage wherein Mr. Mangiapane was once a minority owner, provides no proof that Mr. Mangiapane was involved in any wrongdoing as is alleged in the Second Superceding Indictment.
The Defendant respectfully suggests that the prosecution's case against Defendant Joseph Mangiapane is based upon the frivolous idea and mistaken motivation that he is part of, or involved in organized crime. This false idea was planted in the minds of the government by Justin Woods, who the Defendant barely knew and who could only fabricate this information. The sources of these falsehoods would be revealed in an evidentiary hearing.
The prosecution's case against Defendant Joseph Mangiapane begins and ends with the false idea planted in the heads of various investigators that somehow Mr. Mangiapane is a member of the Mafia, or otherwise a part of organized crime. This false idea was planted there by Justin Woods)[1]
[1 ]Based upon information and belief, "Person A" in the indictment is Jason Woods. See, e.g., Second Superseding Indictment, page 10, paragraph 16(h).
Mr. Woods was stopped by law enforcement while driving in Texas. At the time he was transporting some $146,700 in cash to Mr. Dynkowski.
The undersigned has reviewed a portion of a probable cause statement which resulted in the search of Matt Brown's home.[2] This statement was based largely upon information allegedly given to local law enforcement officers in Texas who were in fact conducting a drug interdiction program in place in Texas and several other states. This statement was based largely upon information given to local law enforcement officers in Texas. The following are some of the known misstatements set forth in the affidavit in support of the above referenced warrants:
The affidavit claims that Mr. Woods told Sgt. Luciano that the currency given to him was illegal money but "he does not have any knowledge as to where the money came from." Exhibit 1: Statement of Probable Cause, page 5, paragraph 2. A mere conclusion by a purported courier or "mule" is insufficient to conclude that cash was "illegal" in any manner or form.
In a subsequent interview, Mr. Woods said that this statement was "incorrect." Mr. Woods states that he did not say that the cash was being transported to Mr. Mangiapane. Exhibit 2; Letter from James D. Henderson, Esq., attorney for Matt Brown to Beth Moscow-Schnoll, Assistant United States Attorney.
Further, Mr. Woods was asked if the money was legal and he said "not to my knowledge". Mr. Woods was asked whether or not it was drug money, and Mr. Woods answered "No." Thus, Mr. Woods' first statement was obviously false, as it conflicts with his subsequent statement, and this conflict was unlikely provided to the grand jury. Exhibit 2.
[2]Based upon information and belief, Matt Brown is the "M.B." referenced repeatedly in the indictment.
Michael D. Munn, a DA investigator with the Orange County California District Attorney's Office, currently assigned to the Anti-Terrorism/Organized Crime Unit states that Mr. Woods "admitted" to Sgt. Luciano, the trooper who stopped Mr. Woods, that Mr. Woods had "previously met a subject believed to be Joseph Mangiapane, Jr., who was supposedly connected to "organized crime" through his father Joseph Mangiapane, Sr. with a history, of Extortion, Gambling, Book making, and Possession of Stolen Property." See Exhibit 1; Affidavit of Probable Cause, page 2, paragraph 2. A simple law enforcement background check or NCIC check would demonstrate that Mr. Mangiapane's father has suffered only one minor conviction which occurred more than twenty-five years ago. This offense was not organized crime related. In any case, Mr. Mangiapane cannot be considered guilty of the offenses alleged in the instant indictment, or any other allegations based upon his association or relationship with other persons, including his own father.
In addition, the affidavit claims that Mr. Woods had been hired by Mr. Brown "to fly to California specifically for a driving job that BROWN said was for MANGIAPANE. Exhibit I: Statement of Probable Cause, page 4, paragraph 3.
This statement is false and the law enforcement/government officers and agents knew this to be false at the time. In fact, in a subsequent interview, Mr. Woods said that this statement was "incorrect." Mr. Woods slates that he did not say that the cash was being transported for Mr. Mangiapane, as Mr. Mangiapane had nothing to with the underlying circumstances that related to the cash transfer. Exhibit 3.
It is pretty incredible that in the United States of America, a local trooper in Texas can claim that a speeding violator, Mr. Woods, said that Mr. Mangiapane hired a third party, Mr. Brown, to hire Mr. Woods to take money to Mr. Dynkowski, and that somehow, Mr. Mangiapane is a "subject" with ties to organized crime through yet another individual (his father) and then give this information to another law enforcement officer. Sgt. Luciano, who in turn gave the information to the writer of the affidavit, Investigator Michael D. Munn. In other words, Mr. Mangiapane has been tied to this case by what can only be described as an unbroken chain of false statements innuendo and speculation, none of which rises to the level of integrity necessary to include in an affidavit in support of a search warrant.
Mr. Mangiapane, Sr. has never been arrested for, much less convicted of Extortion, Gambling, Book Making, or Possession of Stolen Property, as a simple records check would have verified. It is outrageous that Mr. Munn would have used the above referenced information as the basis of a search of Mr. Brown's and Mr. Dynkowski's computers, and knowing falsity or reckless disregard for the truth violates Mr. Mangiapane's 41' and 5th Amendment rights. Such spurious innuendos were passed along to the grand jury that indicted Mr. Mangiapane. For example, on May 16, 2007, in an email, a copy of which was presented to the grand jury, Anthony Petrilla, an investigator for the Securities & Exchange Commission stated to Beth Moskow, a USADE, that a chat room conversation between Mr. Dynkowski, and some unidentified person, might, just maybe, shed "a little light on the alleged mafia connection." Exhibit 3: copy of chat messages presented to Grand Jury.
Alleged by whom? When? Why? On what basis?
Such bold assertions alleging "organized crime" or "mafia connections" constitute inflammatory language which inappropriately affect the grand jury's obligation to investigate facts without the passion and prejudice such statements will unduly inflame.
Mr. Mangiapane is not a terrorist, nor is he a member of the Mafia, nor does he have any connection at all to organized crime, and most importantly, he is not guilty of the allegations made against him in the instant indictment.
Because of the precarious foundation upon which this case is built, Mr. Mangiapane petitions the court to traverse the affidavits which resulted in evidence in all likelihood presented to the grand jury, and an evidentiary hearing is the only vehicle to ferret out these untruths and protect Mr. Mangiapane's Constitutional rights.
LEGAL ARGUMENT
It is fundamental constitutional law that reposes the responsibility for issuing a warrant on the magistrate, a neutral and detached party who independently determines whether there is probable cause to support a search. United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 95, 98, L. Ed. 59 (1959); Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
The interposition of a magistrate between the investigating officers and the person who is the object of the search is to prevent abuses which might otherwise result if the decision to conduct the search is left to the unbridled discretion and zeal of the officer conducting the search. Johnson v. United States, 333 U.S. 10, 13 - 14, 68 S. Ct. 367, 368 - 369, 92 L. Ed. 436 (1948). Knowing this, the warrant issuing process only works if the information given to the magistrate in support of the warrant is complete and truthful, and the government has a minimal obligation to verify statements from a scared potentially coerced informant, Justin Woods.
In a landmark case, Franks v. Delaware, ld. the United States Supreme Court specifically authorized a hearing challenging a warrant issued upon a finding of probable cause by a magistrate, if a legitimate issue as to the truth or veracity of the statements contained in the affidavit to obtain the warrant were shown.
In deciding today that in certain circumstances, a challenge to a warrant's veracity must be permitted, we derive our ground from the language of the Warrant Clause itself, which surely takes the affiant's good faith as its premise: No warrants shall issue, but upon probable cause. supported by oath or affirmation. Id. at 2681.
In rejecting a flat ban against impeaching the veracity of the statements mad in support of the warrant, as many States had previously done, the Court went on to state:
First, a flat ban on impeachment of veracity could denude the probable-cause requirement of all real meaning. The requirement that a warrant not issue "but upon probable cause, supported by Oath or affirmation," would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile. It is this specter of intentional falsification that, we think, has evoked such widespread opposition to the flat no impeachment rule from the commentators, from the American Law Institute in its Model Code of Pre- Arraignment Procedure, Sec. SS290.3(1) (Prop. Off. Draft 1975), from the federal courts of appeals, and from state courts. Id. at 2682, 2683.
The Court summarized its holding as follows:
(We) hold that, where the Defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the Defendant's request. In the event that at that hearing the allegation of perjury or reckless Defendant by a preponderance of the evidence, and, with affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search warrant excluded to
the same extent as if probable cause was lacking on the face of the affidavit. Id. 98 S.Ct. at 2676-77.
By extension of the same logic, if material omissions are made in the affidavit to support a finding of probable cause, any evidence obtained by the improperly issued warrant must be suppressed. United States 1'. Park, 531 P. 2d 754 (5th Cir. 1976; United States v. Ippoliio, 774 F. 2d 1482 (9th Cir. 1 985); United States v. Marlin, 615 F. 2d 318 (5th Cir. 1980); (Jailed Stales v. House, 604 F. 2d 1135 (8th Cir. 1979).
It would also be a dangerous and fatal proposition to our warrant process if the officer were to pick and choose facts he felt were important and present only those facts to the magistrate in obtaining the warrant. It is that very danger which, in the case at bar, impinges upon the Defendant's fundamental constitutional rights.
In United States Stennert. 762 F. 2d 775 (9th Cir. 1985) the Court reversed and remanded for a Franks hearing finding that material omission made by an officer on a warrant affidavit could have misled the magistrate and vitiated his finding of probable cause. In a DEA investigation involving an illicit laboratory excluding volatile ether fumes at the Defendant's home had earlier been the scene of an explosion, leaving the magistrate with the impression that the Defendant has been the operator of a similar illicit lab in the past. The DEA misrepresented this important fact by failing to tell the magistrate that Stennert purchased and moved on to the property after the explosion. The Court Stated:
(11) The Supreme Court in Franks noted that the Warrant Clause of the Fourth Amendment takes the affiant's aood faith as its premise. 438 U.S. at 164, 98 S. Ct. at 2680. Moreover, "(b)'eeause it is the magistrate who must determine independently whether there is a probable cause, ...it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." Id. at 165, 98 S. Ct. at 2681. The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when making a probable cause determination. By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all meaning. See id. at 168, 98 S. Ct. at 2682. Id. at 781.
With respect to the statements in an affidavit that are false or made with reckless disregard for the truth, the Federal rule allows the same rule as for negligent mistakes of fact. Federal Courts. excise then and test the remaining portion of the affidavit for probable cause. Franks v. Delaware, Supra. The following cases support the federal rule. People v. Hampton, 587 P.2d 275 (Colo. 1978); Stale v. GutieiTez, 577 P.2d 440 (N.M. App.Williams, 526 P.2d 714 (Ariz. 1974); Sate v. McManus, 517 P.2d 250 (Or. 1973).
The better rule, on the other hand, holds that statements in an affidavit that are proved to be knowingly false or made with a reckless disregard for the truth will result in an automatic quashing of the warrant without regard to the actual effect of those misstatements on probable cause. People v. Cook. 583 P.2d 130 (Cal. 1978); People v. Rodriguez. 151 Cal. Rptr. 233 (Cal. App. 1978). This also seems to be the opinions of the United States Supreme Court in situations where material omissions, intentional false statements, and statements made with reckless regard for the truth misled the magistrate who issued the warrant.
In the case at bar, the material omissions, misstatements of fact, and misleading information and/or reckless disregard for the truth includes the following:
A. Investigator Michael D. Munn writes at page 4, paragraph 2 that Justin "Woods "admitted to Sgt. Luciano that he had previously met a subject believed to be Joseph Mangiapane, Jr. DOB: 2/8/1966 who was supposedly connected to Organized Crime through his father Joseph Mangiapane DOB: 12/10/1938 with a history of Extortion, Gambling, Book Making and Possession of Stolen Property."
B. Investigator Munn further writes at page 4, paragraph 3 that Justin "Woods stated [to Sgt. Luciano] that Matthew Brown hired him on or about 2/1/2007 to fly to California specifically for a "driving job" that Brown said was for Mangiapane, Jr."
C. Investigator Munn further writes at page 4, paragraph 6 that "Mangiapane Sr. was identified through investigative efforts and was positively identified by Woods from a photograph obtained via the Internet that Mangiapane Jr. had previously showed Woods."
D. Investigator Munn further writes at page 5, paragraph I that "Mangiapane Jr. has no identifiable history. However, Mangiapane Sr. shows upon on www.hollywoodmafia.com that refers Mangiapane is involved in stealing publishing rights and selling said rights." overseas, drugs, and pornography." See Affidavit at Exhibit 1.
E. Investigator Munn further writes at page 5, paragraph 2 that Justin "Woods told Sgt. Luciano that the currency he was given to him by Matthew Brown is illegal money."
The above statements constitute every reference made by Investigator Munn about Mr. Mangiapane in the probable cause statement. All of the above statements, insofar as they are made about Joseph Mangiapane, jr., are false and in fact, several of the statements were recanted by Justin Woods. Exhibit 3. Statements of opinion made by Investigator Munn, or by Sgt. Luciano regarding Mr. Mangiapane's alleged association with organized crime are wildly speculative and also false and were without even the slightest attempt to verify through even law enforcement channels. Are we to believe that AOL, GOOGLE or anonymous b]ogs and websites are the method of choice for law enforcement investigation verification? Efforts to taint the magistrate with references to Mr. Mangiapane's father violated the requirements of the United States Constitution relative to the making of probable cause statements insofar as those statements had nothing to do with Mr. Mangiapane or his alleged involvement in this case.
Absent the foregoing statements, it is doubtful that Investigator Munn would have been successful in convincing a magistrate to issue a search warrant seeking items with which to incriminate Mr. Mangiapane.
An evidentiary hearing on this Traverse Petition should reveal more: telling material omissions, misstatements, fabrications, negligent law enforcement practices and misleading details. The Petition to Traverse the Search Warrant should therefore be granted. The prosecution should not be allowed to rely on a "catchall" good faith exception in this case, which "good faith", the Defendant submits, will be negated by evidence and testimony of this matter.
In United States v, Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) the United States Supreme Court announced that a good faith exception to the exclusionary rule. In Le011 the court held that where police officers, acting in reliance upon a search wan-ant issued by a neutral and detached magistrate, seize evidence, the evidence will be admissible despite a subsequent determination that the warrant was not valid. The Leon case is distinguishable by the facts in this case.
In the case at bar, there is absolutely no evidence stated in the probable cause statement relative to Mr. Mangiapane that could reasonably relied upon. It was at best, speculative, and at worst knowingly false or made with a reckless disregard for the truth. Therefore, there could not have been good faith relative to the inclusion of information about Mr. Mangiapane in the probable cause statement, nor in its presentation to the grand jury to support an indictment.
If the Defendant can show by a preponderance of the evidence that the affiant either knowingly or with reckless disregard included a false statement in the affidavit supporting the search warrant, then any evidence and fruits of the search must be excluded. U.S.C.A. Coast. Amend. 4. United States V. Radriguez..-Suazo, 346 F.3d 637, 2003 FED App. 0354P (6th Cir. 2003). See People v Mayer (1987, 2d Dist) 188 Cal App 3d 110], 233 Cal Rptr 832, * 5.
Sanction of exclusion of evidence obtained through execution of a search warrant is justified if the magistrate, in issuing warrant, was misled by information in an affidavit that the affiant knew was false or would have known was false except for a reckless disregard of the truth. U.S. Coast. Amend. IV; West's Ann. Md. Const, Declaration of Rights, Art. 26. Behrel v. Stale, 151 Md. App. 64, 823 A.2d 696 (2003).
Reckless disregard exists when "viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported." Wilson v. Russo, 212 F.3d 78], 787 (3d Cir. 2000).
Mr. Mangiapane is entitled to a hearing challenging the veracity of a statement in the warrant affidavit if he can make a "substantial preliminary showing" (1) an alliant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit; and (2) the allegedly false statement was necessary to the finding of probable cause. Franks v. Delaware, Id at 155-56.
It is clear that relative to Mr. Mangiapane, the language of the probable cause statement was meant to inflame and mislead the magistrate. It is, of course, impossible to prove a negative. An evidentiary hearing would show that Mr. Mangiapane is not connected to organized crime, and Investigator Munn had no evidence that Mr. Mangiapane was connected to organized crime when he made his probable cause statement. It was knowingly false and prejudicial and if presented in any form to the grand jury it violated the Defendant's rights to a due process and destroyed the independent deliberation process of the grand jury.
Justin Woods did make allegations relative to Mr. Mangiapane's alleged involvement in the alleged scheme. Justin Woods has recanted all of the incriminating allegations made by him relative to Mr. Mangiapane. Mr. Woods recantation should have been presented to the grand jury...it wasn't.
Prior to the filing of this Petition, a Motion to Dismiss has been filed by Mr. Mangiapane. Further, an evidentiary hearing has been scheduled to consider Mr. Mangiapane's discovery motions. Similar issues have been raised in these motions.
Absent the false specter of "terrorism" or "organized crime" or the false statements made by Justin Woods, it is highly unlikely that the magistrate would have authorized the seizure of any information relative to Mr. Mangiapane, nor would it have been presented to the grand jury. Therefore, the Court should exclude any evidence seized from any party which resulted from any search warrant obtained based upon Investigator Munn's probable cause statement and which subsequently was used in the investigation and subsequent indictment of the Defendant. Exhibit 1.
To mandate an evidentiary hearing regarding the veracity of the affidavit's author and any other officers or agents in the chain of law enforcement information under Franks, "the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof" Franks, 438 U.S. at 171.
Allegations and offers of proof required by Franks has been made herein, and the Defendant's Constitutional rights mandate an evidentiary hearing.
CONCLUSION
Mr. Mangiapane respectfully requests that his Traverse Petition be granted and an evidentiary hearing be scheduled at the Court's earliest convenience.
Respectfully submitted,
JOSEPH MANGIAPANE
{Address details omitted"
Attachments:
Statement of Probable Cause, Orange County, and other extracts from Doc 54.
....
New attachment, page 23 - to come next....
Market Data 
Markets 
AI
