which collected rents from OMT retail outlets.
These offices were used in the business of Main Street. The
office occupied by Ms. Hrivnak contained 12 to 15 corporate
kits, or black beauties, including, at one time, the Main
Street kit.*fn3 In addition to selling T-shirts, lingerie
and other legitimate items, OMT retail outlets sold drug
paraphernalia purchased by Main Street and distributed to
retailers, including OMT. The office occupied by Benowitz and
Podolsky contained two desks and chairs and a filing cabinet.
In executing the March 30, 1988, warrant, agents seized
numerous drug paraphernalia catalogs from Benowitz and
OMT was Main Street's retail sales organization for drug
We find that the entire premises known as 40-06 Oser Avenue was
under the complete control of the defendant Main Street
Distributors, Inc. It follows that defendants' claim of
improper conduct on the part of the law enforcement officers in
that they "showed a flagrant disregard of defendants' rights"
We note the observation the Supreme Court made in Maryland v.
Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 1018, 94 L.Ed.2d 72
(1987): "The court has . . . recognized the need to allow some
latitude for honest mistakes that are made by officers in the
dangerous and difficult process of making arrests and executing
The search conducted on March 3, 1988, pursuant to the warrant
issued on March 2, 1988, and the search conducted on March 31,
1988, pursuant to the warrant issued on March 30, 1988, were
lawful searches as were the seizures.
The motion to suppress is denied.*fn5
Statements of Pesce, Cavaliere and Podolsky
On March 3, 1988, Pesce arrived at the Main Street offices
about one hour after the agents had entered the building.
Detective Dennis Wustenhoff was checking the racks of
merchandise at the time. Pesce was not under arrest. Pesce made
several statements to Wustenhoff while the latter was making
the examination. The statements were knowingly and voluntarily
made. The statements are admissible in evidence.
On March 31, 1988, Pesce came to the Main Street offices about
40 minutes after the search had started. Special Agent Peter
Angelino arrested Pesce on an arrest warrant issued the
previous day. Angelino read Pesce his rights and warnings under
Miranda in the presence of Special Agents Giattino and Gary
Kiernan. Pesce advised the agents that he would not waive any
constitutional rights. Kiernan placed Pesce in handcuffs, and
he and Angelino placed Pesce in a vehicle to be transported to
the World Trade Center for processing.
Having indicated that he wished to stand on his Fifth Amendment
constitutional right to remain silent, the agents were bound to
scrupulously honor that assertion. Michigan v. Mosley,
423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Pesce,
seated in the back of the vehicle (still handcuffed), asked why
he was arrested. Kiernan advised Pesce he was arrested "for
trafficking in drug paraphernalia." Pesce boasted that he "beat
this in Suffolk County and I can beat it again." Kiernan
then asked what Pesce meant by "beat this." Pesce's statement
tended to incriminate him on the issue of knowledge.
Kiernan then showed Pesce a pedigree sheet. While asking
routine questions concerning name, address, type of work, etc.,
Pesce said, "You don't like me, do you?" Kiernan replied, "It's
not that I don't like you. I don't like what you are doing." In
response to Pesce's further question as to what he was doing,
Kiernan said, "You are selling drug paraphernalia." Again, in
answer to Pesce's question "What drug paraphernalia?", Kiernan
described some of the items claimed to be drug paraphernalia
seized at Main Street. Pesce's response tended to incriminate.
Finally the exchange with Pesce reached a point at which Pesce
refused to answer any more questions, including those on the
pedigree sheet, until he talked with his lawyer.
In Arizona v. Mauro, 481 U.S. 520, 523, 107 S.Ct. 1931, 1935,
95 L.Ed.2d 458 (1987) the Court, citing Rhode Island v.
Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980),
[T]he Innis Court concluded that the goals of the Miranda
safeguards could be effectuated if those safeguards extended
not only to express questioning, but also to "its functional
equivalent." 446 U.S., at 301, 100 S.Ct., at 1689. The Court
explained the phrase "functional equivalent" of interrogation
as including "any words or actions on the part of the police
(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an
incriminating response from the suspect." Ibid. (footnotes
omitted). Finally, it noted that "[t]he latter portion of this
definition focuses primarily upon the perceptions of the
suspect, rather than the intent of the police." Ibid.
See Anderson v. Smith, 751 F.2d 96, 102-03 (2d Cir. 1984).
We find the statements made by Pesce in the vehicle while being
transported to the World Trade Center on March 31, 1988, were
made in response to questions or their functional equivalent.
The statements are suppressed.
Statements of Podolsky and Cavaliere
We understand that Podolsky and Cavaliere challenge the
admissibility of the statements made by them during the March
31, 1988, search on the theory that they were made during
interrogation while in custody or its functional equivalent,
citing Innis, supra.
Upon entering the premises on March 31, 1988, the agents
conducted a security sweep. The employees were directed to the
luncheon area while the agents searched the racks. The
employees were not otherwise restrained during this period of
the search. During this period — the first 30 to 45 minutes of
the search — Giattino spoke with Podolsky, Cavaliere, Benowitz
and employees of Main Street.*fn6 Giattino asked Podolsky,
what his relationship with Main Street was. Podolsky replied
that he had no relationship with Main Street and that he
operated a separate business, OMT Distributors, which had
offices in the rear area of the office space at 40-06 Oser
Avenue. Cavaliere responded to Giattino's question in a similar
manner, stating that he operated Golden Opportunities; he
pointed to his office space (Office E). Both Podolsky and
Cavaliere returned to their offices after this brief
We find that the statements were not made while in custody or
its functional equivalent. The statements were knowingly and
The motion to suppress the statements made by Podolsky and
Cavaliere on March 31, 1988, during the search of the Main
Street premises, is denied.
Testimony Presented to the Grand Jury
Defendants claim that the manner of presenting items seized,
and the testimony concerning those items, was false and
presented to the grand jury by the prosecutor recklessly or
with knowledge that it was false.
Defendants allege that a law enforcement officer testified
before the grand jury
to the effect that snuff was not inhaled but, rather, placed
between cheek and gum. Defendants state that this is not true
and, therefore, that the testimony of the officer misled the
grand jury and caused it to return an indictment which it
otherwise would not have.
Also, defendants allege that evidence was altered before it was
presented to the grand jury. Defendants claim that the
government — prosecutor(s) and/or law enforcement agents —
inserted screens into glass stems to to create "crack" pipes.
Defendant states that this item — the stem with the screen
inserted — was not carried in its warehouse or sold by any of
its retail establishments.
DISCUSSION RE ALLEGED GRAND JURY IMPROPRIETIES
A trial court may exercise its supervisory power to dismiss an
indictment "to prevent prosecutorial impairment of the grand
jury's independent role." United States v. Hogan,
712 F.2d 757, 761 (2d Cir. 1983). Dismissal is a drastic remedy and thus
is rarely used. United States v. Dyman, 739 F.2d 762, 768 (2d
Cir. 1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 969, 83
L.Ed.2d 973 (1985). Absent proof of government misconduct, the
misleading testimony of a witness is not enough to require
dismissal of an indictment. See Bank of Nova Scotia v. United
States, 487 U.S. 250, 257, 108 S.Ct. 2369, 2377, 101 L.Ed.2d
228 (1988) (that false or misleading summaries were given to a
grand jury by IRS agents does not provide grounds for
dismissing an indictment unless it is shown that there was
Furthermore, evidence considered by the grand jury, which
evidence is later learned to be fraudulent, will not invalidate
an indictment if there is otherwise competent evidence to
support it. United States v. Adamo, 742 F.2d 927, 941-42 (6th
Cir. 1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83
L.Ed.2d 975 (1985). Cf. United States v. Estes, 793 F.2d 465,
466-67 (2d Cir. 1986) (where there is sufficient competent
evidence to establish probable cause, the mere fact that some
incompetent evidence was received by a grand jury does not
invalidate an indictment).
Testimony of the Officer
The statements of the law enforcement officer, to the effect
that snuff is not snorted up the nose but placed between cheek
and gum, are not false but could be denominated as misleading.
There is a type of snuff, also known as "snoose" or "chew,"
which is placed between cheek and gum. However, this is not the
only type of snuff. There is another kind of snuff, albeit less
common, which is snorted up the nose. Several employees of
defendants who appeared as witnesses before the grand jury
testified that snuff was inhaled. For example, one witness
explained how the "snuff bullet" was used:
There is a — inside the bullet head, inside the plastic piece,
there is a valve. In the valve, I guess, there is a little
chamber. You turn the chamber to this side so that it would
open, turn the piece upside down. I guess, tap it and turn the
valve up so that it faced the top and then they would inhale
Q. Is it your testimony that people would actually use that to
A. I've never seen the piece being used. I assumed it was being
used for snuff.
(Tr. of Grand Jury testimony of Witness Y, at 13-14)
In response to the question "[W]hat was your understanding as
to how that bullet snuff inhaler was actually to be used?", the
Well, my customers would never ask me for anything but a snuff
bullet. I guess on a personal basis, I couldn't document by
talking to my customers, but the bullet could have been used
for use with illegal substances.
Q. Such as any particular illegal substance that you might be