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June 27, 1986


The opinion of the court was delivered by: CURTIN

JOHN T. CURTIN United States District Judge.

Defendants George W. Hoskins; his daughter, Lisa Hoskins; and corporations founded by Mr. Hoskins are the subjects of an 18-count indictment charging them with mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, and with conspiracy to commit the underlying substantive crimes.

Several matters are pending before the court: 1) Defendants' appeal of the Magistrate's order denying their motion to require the government to bear the cost of photocopying certain records; 2) Defendants' motion for suppression of items seized pursuant to a warrant and for a hearing on that motion; and 3) The government's motion for an order precluding defendants from introducing certain physical evidence at trial pursuant to Fed.R.Crim.P. 16(d).

 Oral argument was heard on May 23, 1986. At the request of the court, Assistant United States Attorney Martin J. Littlefield filed an additional affidavit on May 28, 1986. The motion was taken under consideration on May 28.

 1) Appeal of the Magistrate's Order

 On June 12, 1984, the offices of the defendant corporations were searched pursuant to a warrant. Before any indictment was returned, the corporate defendants moved for a return of property seized pursuant to Fed.R.Crim.P. 41(e). The Honorable John T. Elfvin denied the motion, but ordered the government to allow inspection and copying of the items seized. The government moved for clarification as to who was to pay for the expense of copying. Judge Elfvin ruled that the government was not required to pay for copying, and this ruling was affirmed by the Second Circuit Court of Appeals in April of 1986. Premises Known as Statler Towers v. United States, 787 F.2d 796 (2d Cir. 1986).

 After the indictment was returned and the case assigned to this court, the defendants moved before United States Magistrate Edmund F. Maxwell for an order requiring the government to provide, at its expense, copies of items seized in the June 1984 search. The Magistrate denied that motion, relying on Judge Elfvin's decision. Defendants now appeal the Magistrate's denial to this court.

 In its affirmance of Judge Elfvin's decision, the Second Circuit looked to the rules governing criminal discovery as an analogy noting that in that context, the expense for copying clearly falls on defendants:

 Absent exceptional circumstances, we believe it proper to leave the burden of duplicating costs on a party who unsuccessfully moves before indictment for return of property seized under warrant. The government has a legal right to the evidence at that stage. Moreover, Rule 16 of the Federal Rules of Criminal Procedure suggests that the government need not pay to retain it. While Rule 16 governs criminal discovery and does not apply to pre-indictment motions such as those brought under Rule 41(e), it provides a useful analogy for resolving the costs issue. In the discovery context, Rule 16's clear import is that the defendants, at least nonindigent ones, must pay the cost of copying documents legally held by the government.

 Id. at 798 (citation omitted).

 On May 8, 1986, George, Hoskins, as the former President of Webster Home Mailing Service, Inc., signed an affidavit stating that the company had ceased all business operations and is unable to pay for copying costs. Counsel for Webster Home Mailing Service, Inc., urges the court to issue an order directing the government to pay for copying costs because of the indigency of the corporation.

 Although Webster Home Mailing Service may be indigent, there has been no suggestion that any of the remaining defendants are indigent. The same attorney represents all the corporate defendants, and Webster Home Mailing Service would undoubtedly have access to any copies obtained by the other corporations. George and Lisa Hoskins also have funds to obtain copies.

 Furthermore, indigent corporate defendants cannot be assigned counsel by the court or provided with copies of documents using funds available under the Criminal Access to Justice Act. Under these circumstances, there are no funds from which the court may draw money for copying costs.

 In addition, all defendants have been permitted to review and inspect the records. They have had the opportunity to take any notes they believe are necessary. The indigency of one of the corporate defendants does not, under the circumstances, require a reversal of the Magistrate's order. The Magistrate's order is affirmed. Defendants are ...

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