United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Talwani United States District Judge
defendant, John Barbosa (“Barbosa”) stands
indicted under 18 U.S.C. § 922(g)(1), on one count of
possession of a firearm and ammunition after having been
convicted of a felony. On July 22, 2016, this court denied
Barbosa's motion to suppress a firearm and ammunition
which were seized incident to his August 10, 2015, arrest.
Mem. & Order [#58]. Barbosa now moves for a hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978),
on the veracity of the information contained in the arrest
warrant. Def.'s Mot. Franks Hr'g [#71]. For
the following reasons, Barbosa's Motion for a Franks
Hearing [#71] is DENIED.
August 8, 2015, Jillian Poeira and her mother, Ana Maria
Poeira (hereinafter, collectively, “the
Poeiras”), walked into a police station in New Bedford,
Massachusetts, to file a report against Barbosa, Jillian
Poeira's former live-in boyfriend. Aff. Anthony E.
Fuller, Esq. Supp. Def.'s Mot. Franks Hr'g
[hereinafter, “Fuller Aff.”] Ex. A at 3
(Application for Criminal Complaint) [#73-1]; Ex. E at 11
(11:21), 17 (17:17-19) (Grand Jury Proceedings) [#73-5]. The
Poeiras spoke with Officer Gregory Sirois (hereinafter,
“Officer Sirois”), who subsequently drafted an
Application for Criminal Complaint (hereinafter,
“Application”). Ex. A at 2-3. The Statement of
Facts contained within the Application provides, in relevant
On August 08, 2015[, ] this writer had reason to speak with
Ms[.] Jillian Poeira and her mother[, ] Ana Poeira[, ] at
approximately 1245 hrs. Both stated that on this date at
about 0700 hrs, Ms. Jillian Poeira's ex-boyfriend showed
up at . . . [the] single family home where both females
reside. Mr. John Barbosa . . . knocked on the door[, ] and
when Ms. Ana Poeira opened the door[, ] he pushed his way
inside the apartment[, ] demanding to see Jillian. Ms. Ana
Poeira pushed him against the wall and held him there and[, ]
as she did[, ] he raised a black firearm into the air and
pointed it [at] both females threatening to ‘kill all
of you[.'] Ms. Ana Poeira managed to push John back out
the door. He left at this time. I asked why they waited until
now to report the incident and Ana stated she had a
doctor's appointment, and Jillian stated she was scared.
Id. at 3.
to the Application, Officer Sirois confirmed information
provided by Jillian Poeira that Barbosa drives a gray Volvo.
Id. He checked for, but did not find, outstanding
warrants or restraining orders as to Barbosa and Jillian
Poeira. Id. at 4. He issued a “Be On the
Lookout” (“BOLO”) notice for the Volvo and
notified a fellow officer that Barbosa purportedly frequents
the New Bedford Library. Id. at 4. He requested that
an arrest warrant issue for Barbosa on a charge of home
invasion, in violation of Mass. Gen. Laws ch. 265 §
Id. at 2.
addition to issuing a warrant for Barbosa's arrest,
Officer Sirois assisted Jillian Poeira in obtaining an
emergency restraining order against him. Id. at 4.
While at the police station, she handwrote an affidavit in
support of her application for an Abuse Prevention Order. Ex.
D at 4 (Abuse Prevention Order) [#73-4]; see also
Ex. A at 4 [#73-1]. According to the affidavit,
[w]hen [Ana] answered the door[, ] she only opened it a
little bit[, ] and [Barbosa] said he wanted to talk to me.
She said she had nothing to talk about and asked him to
leave. He then pushed the door open and tried to come all the
way in as my mother was trying to hold him back . . . My four
year old seen [sic] them pushing each other and said
he had a gun. When I ran to the phone to call the police, I
heard my son say that and then seen [sic] the gun so
I threw the phone and ran to my mom to help her push him out.
He said [if] you call the cops I will kill everyone in this
Ex. D at 4.
August 10, 2015, officers from the New Bedford Police
Department entered the New Bedford Library and arrested
Barbosa. Ex. B at 3 (CJIS Web Printout) [#73-2];
Gov't's Resp. Court's Inquiry Ex. A at 2 [#44-1].
A firearm and ammunition were seized from a bag resting near
Barbosa's foot. Gov't's Resp. Court's Inquiry
Ex. A at 2; Indictment [#1]. On November 12, 2015, a federal
grand jury indicted Barbosa on a charge of Felon in
Possession of a Firearm and Ammunition. Indictment.
on the Fourth Amendment to the United States Constitution and
Rule 12(b)(3)(c) of the Federal Rules of Criminal Procedure,
Barbosa moved to suppress all items seized as fruits of this
arrest, arguing that the arrest warrant had been issued
unlawfully and without probable cause. Def.'s Mot.
Suppress & Supp. Mem. [#37]. He did not move for a
Franks hearing at that time. While his Motion to
Suppress [#37] was pending before this court, Barbosa
retained new counsel. Order [#51]; Order [#49]. On July 22,
2016, the court denied the motion to suppress. Mem. &
Order [#58]. Barbosa now moves for a Fra ...