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UNITED STATES v. TUCKER

June 29, 1979

UNITED STATES OF AMERICA, Plaintiff,
v.
GEORGE TUCKER and SUPER DUPERS, INC., Defendants



The opinion of the court was delivered by: PLATT

Memorandum of Decision and Order

Defendant, George Tucker, President and Chief Executive Officer of Super Dupers, Inc., has been charged in Count One of a twenty-one count indictment with violating Title 18, United States Code, Section 1962(c) by participating in the conduct of the affairs of an enterprise engaged in interstate commerce through a pattern of racketeering activity which included counterfeiting sound recordings and selling them as the product of the recording companies identified on the labels of said recordings. He has also been charged in Counts Two through Ten with nine instances of employing interstate wire communications for the purpose of executing the aforesaid fraudulent scheme, in violation of Title 18, United States Code, Section 1343. In Counts Eleven through Twenty-One, defendants George Tucker and Super Dupers, Inc., have been charged with reproducing and distributing for profit eleven copyrighted sound recordings without authorization from the respective copyright owners, in violation of Title 17, United States Code, Sections 106(1) and (3) and 506(a).

 On November 27, 1978, United States Magistrate William J. Hunt (District of New Jersey) issued search warrants based on the affidavit, dated the same day, of Special Agent Robert F. Levey of the Federal Bureau of Investigation ("Levey Affidavit"). The warrants authorized the search of the premises of Super Dupers, Inc., and of George Tucker's residence, *fn1" and the seizure of counterfeit and pirate *fn2" phonorecords of copyrighted sound recordings as well as related equipment and documents found therein. On December 6, 1978, federal agents executed the warrants. Although they found no evidence of the alleged criminal activity at George Tucker's home, they seized over one thousand record albums, over two thousand eight-track tapes, over thirty thousand recording labels, various business records and documents, and numerous machines and related recording equipment at the corporate defendant's premises. Defendants have now moved, Inter alia, to suppress the evidence so seized on the grounds that it was obtained in violation of their Fourth Amendment right to be free from unreasonable searches and seizures.

 Defendants argue that the affidavit in support of the search warrant failed to set forth facts and circumstances from which the Magistrate could conclude that probable cause existed; that the information contained in the affidavit was too "stale" to support a finding of probable cause; that the Government made intentional false statements in the affidavit; and that Counts Two through Ten should be dismissed as based on contrived jurisdiction. *fn3"

 I.

 Defendants contend that the Levey Affidavit fails to state facts sufficient to show probable cause for the issuance of a search warrant because it fails to meet the standards set forth by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In particular, defendants assert (Brief (sic) in Support of Defendants' Motion to Suppress ("Defendants' Memorandum") at 3) that the affidavit, which contains information provided by informants, fails to "set forth "some of the underlying circumstances' forming the basis of the informants (sic) conclusion that illegal activity is afoot," fails to "state facts which give some assurance that the informant is a credible person," and fails to state facts which give some assurance "that the informants (sic) information has been obtained in a reliable manner." The government concedes (Memorandum in Opposition to Defendants' Motions to Suppress and Dismiss ("Government's Memorandum") at 2) that "the case law is clear and for the purposes of this point is not in dispute," but disagrees with defendants' formulation and application of the Aguilar-Spinelli test.

 Although the Court finds that neither side has correctly stated or applied the Aguilar-Spinelli formula, we agree with the Government that defendants' challenge lacks merit. In Aguilar v. Texas, supra, 378 U.S. at 114, 84 S. Ct. at 1514, the Supreme Court set forth a two-prong test, the second prong of which is phrased in the alternative:

 
"Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887, was "credible' or his information "reliable.' " (Footnote omitted).

 In paragraphs 19, 20, 26 and 28 of his affidavit, Special Agent Levey identified three informants who supplied him with information concerning defendant George Tucker. Ray and Florence Sexauer as well as Byron Hawley indicated to Levey not only that George Tucker manufactured counterfeit recordings, but that the defendant "was placing his duplicating equipment into the basement of a new home." In his affidavit, Levey stated that these informers "are personally known to me to be major counterfeit and pirate eight-track tape manufacturers who have told me that they have dealt with TUCKER on a regular basis." The Levey Affidavit, containing as it does information supplied by named informants and gleaned from personal contact with defendant Tucker, is distinguishable from the affidavits involved in Aguilar and Spinelli. As the Court noted in Aguilar, supra, 378 U.S. at 113, 84 S. Ct. at 1513:

 
"The affidavit here not only "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an "affirmative allegation' that the affiant's unidentified source "spoke with personal knowledge.' "

 The Government also relied on a confidential informant in Spinelli, supra, 393 U.S. at 416, 89 S. Ct. at 589:

 
"The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI's source received his information it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him."

 As for the second prong of the Aguilar formula, we find that the warrant affidavit indicated "some of the underlying circumstances" from which he concluded that his named informants were "credible." As noted earlier, both the Sexauers and Byron Hawley were personally known by the affiant to be major counterfeit and pirate eight-track tape manufacturers; Levey further stated in paragraph 20 that Ray Sexauer "is known to me, through personal conversations and meetings, as being the largest manufacturer and distributor of pirated tapes in the northeastern United States." As the United States Attorney points out with respect to the credibility of these informants (Government's Memorandum at 5):

 
"(T)his was a case in which an undercover agent was dealing "in the trade' with those named individuals, (Sexauer and Hawley), who had no motive to lie to one whom they thought was a partner in the massive corrupt enterprise."

 Thus, the warrant affidavit satisfies the first prong of the Aguilar test concerning the basis of the informants' information as well as the second prong concerning the credibility of the informants.

 Even if one assumes, Arguendo, that the affidavit is somehow inadequate under Aguilar, it satisfies the more elaborate test set forth in Spinelli v. United States, supra, 393 U.S. at 415, 89 S. Ct. at 588:

 
"The informer's report must first be measured against Aguilar's standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been ...

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