The opinion of the court was delivered by: CANNELLA
Defendant's motions (1) for an order directing additional pretrial discovery; (2) for in camera inspection of the Grand Jury minutes; (3) to dismiss the indictment or, alternatively, to consolidate Counts One through Nineteen into five counts and sever Counts Twenty through Twenty-eight; and (4) to suppress evidence seized from defendant's law office, are denied. Fed.R.Crim. P. 6, 8, 12, 14, 16.
The indictment in this case charges defendant, a practicing attorney, with nineteen counts of mail and wire fraud, 18 U.S.C. §§ 1341, 1343, 2 (Counts 1-19), nine counts of aiding and abetting the submission of false statements to obtain Social Security cards, 18 U.S.C. §§ 1001, 2 (Counts 20-28), one count of forgery and alteration of documents relating to the registry of aliens, 18 U.S.C. §§ 1426(a), 2 (Count 29), and one count of selling and disposing of forged documents relating to the registry of aliens, 18 U.S.C. § 1426(b) (Count 30).
In essence, defendant is charged with operating a scheme whereby he promised, for a fee, to obtain "employment authorization" for nonimmigrant aliens, which would allow them to remain in the United States and work pending an application for permanent resident alien status. The Government claims that defendant knew that none of these nonimmigrant aliens were entitled to "employment authorization" under the immigration and naturalization laws. The Government also charges that defendant prepared and caused to be prepared false Immigration and Naturalization Service ("INS") rubber-stamp impressions on certain INS I-94 forms and the aliens' passports. Defendant's purpose in causing such false "employment authorization" endorsements, according to the indictment, was that the fraudulent documents would be used by the aliens to work and remain illegally in the United States. Finally, the indictment charges that defendant aided the aliens involved in presenting the falsified documents to the Social Security Administration in support of applications for Social Security cards.
Beginning at 9:00 a.m. on April 8, 1981, INS Criminal Investigator Andrew C. Simon and four other INS agents searched defendant's law office at 551 Grand Street in Manhattan pursuant to a search warrant issued on April 6 by Magistrate Sinclair.
The agents' primary objective was to locate a counterfeit INS "employment authorization" rubber stamp. They also sought an appointment book and office diary, some black pens, and various documents relating to the immigration status of sixteen Filipino nationals whose names were set forth in an exhibit to a rider attached to the warrant. The rider mentioned the following specific property to be seized:
An immigration employment authorization stamp; a stamp pad (blue/purple ink) and other containers of blue/purple ink; a pen desk set (black ink) and any other black ink pens; an appointment book and office diary for period prior to 4/6/81; blank immigration forms; all records and documents relating to the immigration status or INS work status or any immigration petition, document or utterance filed in behalf of and relating to those Philippino (sic) Nationals listed on Exhibit A to this "Rider," including receipt book entries and other records of office receipts and payments for services rendered in connection therewith.
Defendant was alone in the office when the agents arrived. After defendant read the search warrant, Simon asked him if he would assist the agents in locating the items set forth in the rider. Defendant declined and the agents commenced the search. The office consisted of one room, approximately thirty by fifteen feet, and contained filing cabinets, shelves, office machines, law books, two desks and a television set. One agent took several photographs of the premises before the search began showing the contents of the office. Simon testified and the photographs show that hundreds of papers and other documents were strewn about the office, especially on defendant's main desk.
The Court credits the testimony of Agent Simon with respect to the manner in which the agents conducted the search. Simon testified that he and one other agent first searched defendant's main desk in its entirety, and then searched several metal and wooden filing cabinets next to the desk. The cabinets contained hundreds of legal-size files, some with names written on them and some without. Simon either reached into or tapped the outside of the files with names looking for the employment authorization stamp, which he thought would be approximately one and one-half inches wide with a one and one-half inch handle. He did not read the documents inside those files. If, however, a file had no name, he glanced at its contents until he could determine to whom it related.
Simon seized just two files from the cabinets, each of which bore the name of an alien listed in the rider to the warrant. He did not find a rubber stamp.
Simon next searched the smaller second desk, then glanced behind a few of the law books on the shelves, looked behind the furniture and sifted through the trash in the garbage pail. In the course of the three and one-half hour search, thirty-two items were seized and listed in an inventory,
although the employment authorization stamp was not found. The thirty-two items included an appointment book, some black pens, several blank immigration forms, and various documents and papers relating to several of the aliens named in the warrant as well as to a number of other aliens not named in the warrant. Most of the items were found on top of defendant's main desk and were not covered except perhaps by other documents strewn about the desk. Simon testified that neither he nor any other agent opened any sealed envelopes during the search or seized any item contained in a sealed envelope.
And except for the two legal files, the agents did not remove anything from the filing cabinets.
When asked how he determined whether to seize a particular document, Simon testified:
A. If the document contained one of the names of the aliens mentioned in the rider to the warrant, I seized it.
Q. With regard to those documents that did not contain names of the aliens that ... are mentioned in the rider, what process did you go through in order to determine that that was a document that should be seized pursuant to your search?
A. In reading the document, the documents of some of those letters and forms indicated to me that it was evidence of the very same crimes that we were investigating, and I made a determination to seize it.
Simon further testified that when he commenced the search, he was not looking for documents relating to aliens whose names were not contained in the rider to the warrant.
Items 1, 3, 4, 5, 8, 11, 12, 14 (I-130 form), 15, 16, (completed I-130 form), and 17 through 25, are documents or objects either specifically identified in the search warrant or containing the names of aliens named in the warrant. All were found on top of defendant's main desk.
Item 27 was found in one of the main desk's drawers and was identified by defendant as his appointment book. The search warrant expressly calls for the seizure of an appointment book. Item 32 was found on top of the second desk and contains the name of an alien named in the warrant.
Items 2, 6, 7, 9, 10, 13, 14 (I-551 form), and 16 (blank I-130 forms), were also found on top of defendant's main desk, but apparently relate to aliens whose names were not mentioned in the search warrant. Items 28 and 31 were found on top of the second desk and also relate to aliens whose names were not listed in the warrant. Finally, item 26, a passport, was found in the center drawer of the main desk. As depicted in one of the photographs, the drawer was partially open when the agents commenced the search, and the passport was visible.
With respect to each document relating to an alien not mentioned in the warrant, Simon explained why it was seized. Item 2 is a letter from R. G. ("Ricky") Fontanilla to defendant, dated February 6, 1981. Referring to a person named "Lito," Fontanilla writes:
He mentioned to me about tourist who would like to go there and if they want to stay there and look for a job and get a social security card, you could facilitate their passport by stamping something on their passport that they cannot be deported. Lito, mentioned about the fee of $ 700.00, and I'm charging here an additional of $ 300.00 to be paid in pesos, while the $ 700.00 will be paid there after the work has been accomplished. Could you please explain to me about these procedure as right now we have four prospects here who are willing to go there by the end this month and next month too.
Simon testified that he believed the letter "referred directly to the very same crimes that we were investigating. Therefore I seized it."
Item 6 is an INS G-325 form made out in the name of Francisco Quesada. A G-325 form is submitted in conjunction with a petition for naturalization. Simon had previously been advised by Arlene Kodumal, whose name appeared on the warrant,
that Quesada was her father and that defendant had filed citizenship papers on Quesada's behalf. Simon seized it because he believed it should already have been filed.
Item 7 is a letter dated November 23, 1980, asking defendant to "(p)lease arrange to return stamped authorized passports to their owners," and listing two names and phone numbers.
Although Simon did not know these individuals or think they were Filipino aliens, he seized the document because it "was evidence of the very same crimes that we were investigating ...