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Case 1:20-cr-00330-PAE Document 285 Filed 05/20/21 Page 28 of 34 material information to a federal judge in an ex parte proceeding, “[t]he call for the court’s supervisory power .. . is at its strongest and most defensible.” Cortina, 630 F.2d at 1214. Maxwell need not satisfy the standard of Franks v. Delaware, 438 U.S. 154 (1978) in order to obtain relief. But even if Franks applies, Maxwell has easily met her burden. To obtain a Franks hearing, a defendant must make a “substantial preliminary showing,” United States v. Falso, 544 F.3d 110, 125 (2d Cir. 2008) (quoting Franks, 438 U.S. at 155-56), that (1) there were “inaccuracies or omissions” in the affidavit, (i1) “the alleged falsehoods or omissions were necessary to the issuing judge’s probable cause or necessity finding,” and (111) “the claimed inaccuracies or omissions [were] the result of the affiant’s deliberate falsehood or reckless disregard for the truth.” United States v. Lambus, 897 F.3d 368, 397 (2d Cir. 2018). Here, there is no dispute that (i) AUSA |g representations to Judge McMahon were false and misleading, (ii) Judge McMahon would not have modified the Protective Order to authorize the subpoena if AUSA gg had been honest with her, and (3) AUSA gg statements were deliberately false, since he had a “complete handle on the landscape” months before he appeared in front of and misled Judge McMahon. Nor need Maxwell prove “outrageous government conduct” to obtain relief. Were that her burden, however, Maxwell would have easily satisfied it. “The concept of fairness embodied in the Fifth Amendment due process guarantee is violated by government action that is fundamentally unfair or shocking to our traditional sense of Justice.” United States v. Schmidt, 105 F.3d 82, 91 (2d Cir. 1997). To prevail on an outrageous government conduct claim, “a defendant must show that the government's conduct is ‘so outrageous that common notions of fairness and decency would be offended were judicial processes invoked to obtain a 23 DOJ-OGR-00004163