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United States v. Barbosa

United States District Court, D. Massachusetts

November 7, 2016

UNITED STATES OF AMERICA
v.
JOHN BARBOSA, Defendant.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         I. Introduction

         The 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.

         II. Background

         On 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 part:

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.

         According 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 § 18C.[1] Id. at 2.

         In 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 house.

Ex. D at 4.

         On 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.

         Relying 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 ...


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