United States District Court, Eastern District of New York
June 25, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
JULIO LARRACUENTE, SARA FELDMAN, ALSO KNOWN AS "SARA FRAJBERG", AND JOSE DEGRACIA, DEFENDANTS.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM DECISION AND ORDER
The defendant Julio Larracuente ("Larracuente"), moves for an order
seeking the following relief: (1) a bill of particulars pursuant to
Fed.R.Crim.P. 7(f); (2) severance from his co-defendants pursuant to
Fed.R.Crim.P. 12(b)(5) and 14; and, (3) suppression of physical evidence
pursuant to Fed.R.Crim.P. 41(f). For the following reasons, branch (1) is
denied, branch (2) is denied as moot, and branch (3) is granted in part
and denied in part.
The Motion Picture Association of America, Inc. ("MPAA"), is an
organization which, among other functions, investigates the sale,
purchase and/or production of illegal or "bootleg" videocassettes
(Ferbrache Aff't ¶ 7). Bootleg videos are typically produced by
duplicating legitimate copyrighted films, without the authorization or
consent of the copyright holder (Ferbrache Aff't ¶ 6). Counterfeit
surface and spine labels are also created which are then placed upon the
infringing videocassette and its cardboard or plastic case (id.).
In late 1988, the MPAA was advised by an informant that a store called
Video Latino, 928 Broadway, Queens, New York, which is owned by
Larracuente, was selling bootleg videos with counterfeit labels
(Ferbrache Aff't ¶ 8). The informant also stated that Larracuente
owns a store called "The Record Shop", at 922 Broadway, Brooklyn, New
York, where he believed these bootleg videos were being manufactured
(Ferbrache Aff't ¶ 8). This information was initially provided over
the telephone, and later reduced to a handwritten note sent to the MPAA
(Ferbrache Aff't ¶¶ 8-9). Although the informant identified himself by
name as "Victor Victoria", his address and telephone number were withheld
(Ferbrache Aff't ¶ 8).
Subsequently, in August of 1989, the MPAA received another telephone
call, wherein the anonymous caller stated that Video Latino was selling
bootleg videos (Ferbrache Aff't ¶ 10). This conclusion was apparently
based upon the fact that the videos were of a low quality, and also that
the store had in stock the video "Who Framed Roger Rabbit?", well before
its official release date (id.).
Based upon the foregoing information, the Federal Bureau of
Investigation ("FBI") commenced an investigation. After initially renting
64 videocassettes and determining that at least 35 of them were illegal
"bootleg" copies, the FBI undertook a surveillance of the Video Latino
premises in November of 1989 (Ferbrache Aff't ¶¶ 11-12).
During the surveillance, Larracuente was first observed leaving the
Video Latino early one evening in a Toyota truck with New Jersey license
plates. He drove to a store known as "Aspen Video", where he delivered a
large cardboard box (Ferbrache Aff't ¶¶ 11-13). Larracuente then left
Aspen Video and drove to a two-story house at 62-65 Forest Avenue,
Queens, New York.
Following this first observation of transporting large
cardboard boxes, the FBI observed Larracuente on several other
transporting the same type of boxes between the Video Latino, the
62-65 Forest Avenue premises, and The Record Shop (Ferbrache
Aff't ¶¶ 14-22). Some of these boxes were marked with the name
"BASF", which is a well-known, large-scale manufacturer of
unrecorded or "blank" videocassettes (Ferbrache Aff't ¶ 20).
As detailed in Agent Ferbrache's affidavit in support of the search
warrant, in addition to the above, the investigators had purchased
numerous bootleg videos from co-defendant Sara Feldman, who is alleged to
have operated the Video Latino store (Ferbrache Aff't ¶¶ 23-29). A
total of approximately 490 bootleg videocassettes were purchased from
Feldman from December, 1989 through February, 1990 (Ferbrache Aff't
Agent Ferbrache asserts that in his experience of investigating
videocassette bootleg operations, such large cardboard boxes "are
frequently used to transfer Bootleg Videos from the `lab' at which they
are produced to their destinations, which are generally video stores or
distributors" (Ferbrache Aff't ¶ 13).
Based upon the extensive investigation as detailed in Agent Ferbrache's
affidavit in support, Magistrate A. Simon Chrein issued the search
warrant on February 14, 1990, which was executed the next day by three
FBI Special Agents, including Ferbrache, two FBI Clerks and two MPAA
The search warrant specifically authorized the search of:
"THE PREMISES KNOWN AND DESCRIBED AS THE FIRST
FLOOR OF A TWO-STORY HOUSE LOCATED AT 62-65 FOREST
AVENUE, QUEENS, NEW YORK."
The property reasonably believed to have been concealed on the
premises, is described in the warrant as follows:
"Unauthorized and infringing copies of copyrighted
movies; counterfeit labels, be they loose or affixed
to such movies, and counterfeit sleeves to contain
such movies (such copies, labels and sleeves
collectively referred to hereafter as "Bootleg
Videos"); video cassette recorders, video enhancers,
video stabilizers and other equipment used in making
Bootleg Videos; proceeds from the sale of Bootleg
Videos; records relating to the manufacture,
purchase, sale and production of Bootleg Videos,
including, but not limited to invoices, receipts and
ledgers; records relating to income derived from the
manufacture, purchase, sale and production of Bootleg
Videos, including but not limited to bank statements
and tax returns; and records relating to the
identities of persons involved in the manufacture,
purchase, sale and production of Bootleg Videos, all
constituting evidence of violations of Title 17,
United States Code, Section 506."
According to the Government, upon executing the warrant on February
15, 1990, "[t]he search revealed extensive evidence of an active
counterfeiting lab" (Government's Memorandum of Law at p. 5). The Agents
found approximately 78 professional videocassette recorders and assorted
technical equipment, as well as over 1,600 bootleg videocassettes. In
addition, the Agents found a .25 caliber semi-automatic handgun on the
top shelf of a closet in the master bedroom on the second floor of the
Larracuente now moves for a bill of particulars, severance, and
1) Bill of Particulars:
Larracuente requests the Court to direct the Government to
furnish him with a bill of particulars pursuant to Fed.R.Crim.P.
7(f). Specifically, he seeks "the names of any other alleged
co-conspirators, whether indicted or unindicted, the dates when this
defendant allegedly joined the conspiracy, and the location of
any meetings" (Siegert Affirmation at p. 7). In opposition, the
Government alleges that these requests are improper, insofar as
they are merely a ruse "to obtain information that is not
available under Rule 16 of the Federal Rules of Criminal
Procedure" (Government's Memorandum of Law at p. 12).
Rule 7(f) provides that "[t]he court may direct the filing of a bill of
particulars". It is well settled, however, that whether or not a bill
should be granted lies "within the sound discretion of the district
court" (United States v. Bortnovsky, 820 F.2d 572, 574 [2d Cir. 1987],
citing United States v. Panza, 750 F.2d 1141, 1148 [2d Cir. 1984]). A
bill of particulars is not to be viewed as a discovery device to seek and
compel disclosure of the Government's evidence prior to trial (see United
States v. Gottlieb, 493 F.2d 987, 994 [2d Cir. 1974]), but rather, its
sole purpose is to provide information to the defendant sufficient to
advise him of the crimes for which he is charged. So long as the
defendant is adequately apprised of the charges contained in the
indictment to enable him to prepare his defense or to avoid unfair
surprise at trial, a bill should not be granted (see United States v.
Matos-Peralta, 691 F. Supp. 780, 791 [S.D.N Y 1988]).
The Second Circuit recently upheld the district court's denial of a
bill of particulars where the defendant sought precisely the same
information as that sought here: namely, the identity of other persons in
the conspiracy; the approximate date when the defendant was alleged to
have joined the conspiracy; and the precise dates, times and locations
relevant to the charges against the defendant in the indictment (see
United States v. Torres, 901 F.2d 205 [2d Cir. 1990]). In rejecting the
defendant's application, Judge Mahoney provided an instructive review of
the function and scope of a bill of particulars:
"`The function of a bill of particulars is to
provide defendant with information about the details
of the charge against him if this is necessary to the
preparation of his defense, and to avoid prejudicial
surprise at trial.' . . . `A bill of particulars
should be required only where the charges of the
indictment are so general that they do not advise the
defendant of the specific acts of which he is
accused.' . . . `Whether to grant a bill of
particulars rests within the sound discretion of the
district court.' . . . `Acquisition of evidentiary
detail is not the function of the bill of
particulars.' . . . `So long as the defendant was
adequately informed of the charges against him and was
not unfairly surprised at trial as a consequence of
the denial of the bill of particulars, the trial court
has not abused its discretion.'"
901 F.2d at 234 (citations omitted).
The Court finds that the indictment here adequately advises Larracuente
of the specific acts of the crimes for which he is accused of
committing, sufficient to prevent unfair surprise at trial. The
indictment is not phrased in such general terms as to cause Larracuente
unfair surprise at trial. Additionally, the defendant has been already
provided with the evidentiary details of the Government's case in
discovery disclosures, which include, as acknowledged by counsel for the
defendant, "tape recordings of some illegal activities involving an
alleged co-conspirator" (Siegert Affirmation at p. 6). Independent of the
indictment and discovery, the affidavit of Mark D. Ferbrache, Special
Agent of the Federal Bureau of Investigation, in support of the search
warrant, provides ample detail of the specific acts underlying the
indictment. In this Court's view, compelling the Government to provide
the defendant with a bill of particulars under these circumstances would
Accordingly, Larracuente's motion for a bill of particulars is
Pursuant to Fed.R.Crim.P. 14, Larracuente requests a severance
of his trial from that of his co-defendants primarily on two
grounds: (1) likelihood of prejudicial spillover; and, (2)
antagonistic defenses (see Siegert Affirmation at p. 6;
Defendant's Memorandum of Law at p. 3-4). In opposition, the
Government alleges that the defendant's conclusory allegations,
without more, are insufficient to sustain the burden of
justifying a severance (see Government's Memorandum of Law at p.
11). However, since co-defendants Jose DeGracia and Sara Feldman
have both entered pleas of guilty, this motion is now rendered
Accordingly, Larracuente's motion for a severance is denied as
Larracuente moves to suppress physical evidence seized at 62-65 Forest
Avenue, Queens, New York, primarily on three grounds. First, he alleges
that two errors contained in the affidavit in support of the search
warrant application, which transposed the street numbers of the premises
to be searched, from "65-62" to "62-65" Forest Avenue, renders the
subsequent issuance of the warrant defective. Second, Larracuente alleges
that there was insufficient probable cause to support the issuance of the
search warrant. Finally, it is alleged that the seizure of the .25
caliber handgun from the top shelf of a closet on the second floor of the
premises during the execution of the warrant exceeded the scope of the
In opposition, the Government contends that: (1) the transposition of
street numbers was a mere typographical error and such a technical defect
should not void the warrant; (2) probable cause did exist for the
issuance of the warrant; and, (3) the handgun was properly seized during
a "security check" of the premises.
As set forth below, the Court rejects Larracuente's first two
arguments, but grants his motion as to the third. Accordingly, the .25
caliber handgun is suppressed.
a) Identification of Premises to be Searched.
The Fourth Amendment requires that a search warrant "particularly
describ[e] the place to be searched". In cases where the street number of
the premises to be searched is incorrectly set forth in the warrant,
courts have generally upheld the ensuing search so long as "the
description of the premises to be searched was sufficient to enable those
executing the warrant to locate and identify the premises, with
reasonable effort" (United States v. Rivera, 465 F. Supp. 402, 409
[S.D.N.Y.], aff'd without opn., 614 F.2d 1292 [2d Cir. 1979]; see
generally 2 W. LaFave, Search and Seizure, A Treatise on the Fourth
Amendment § 4.5(a), at p. 212  ["the cases reflect an
understanding of the fact that errors can easily occur in the use of
numbers, such as an apartment or house number, and that it should be
presumed that such an error did occur when other descriptive facts fit a
Here, the warrant itself stated the correct street address, but
the affidavit upon which it was based twice contained an error in
the street number. Otherwise the correct address was listed both
in the caption and within the affidavit.
In Ferbrache's affidavit in support of his application for the search
warrant, the premises were specifically correctly listed in the caption
as "62-65" Forest Avenue (emphasis supplied). Within the body of the
affidavit, two references to the premises under investigation were also
listed as "62-65" Forest Avenue, Queens (see Ferbrache Aff't at pp. 8, 11
[emphasis supplied]). The warrant issued by Magistrate Chrein based upon
this application authorized, and twice listed, a search of "62-65" Forest
Avenue, Queens, which premises were searched the following day. However,
in two paragraphs of the affidavit in support, the premises were listed
as "65-62" Forest Avenue, Queens (see Ferbrache Aff't at pp. 2, 17
Larracuente argues that this transposition of numbers in the two
paragraphs of the affidavit should render the ensuing search warrant
fatally defective, since no probable cause has been established to
justify a search of 62-65 Forest Avenue (see Siegert Affirmation at p.
3). Therefore, according to Larracuente, all of the evidence seized at
62-65 Forest Avenue should be suppressed.
In United States v. Christopher, 546 F.2d 496, 497 (2d Cir.
1976), the defendant challenged the issuance of a search warrant
for "Room 1334" of a particular apartment building. In one
sentence of the underlying affidavit, the premises were described
as "Room 1334", otherwise the affidavit made it clear that the
intended premises were in fact "Room 1332". The Government
searched "Room 1332", rather
than "Room 1334" as listed on the warrant, and seized various
Aside from finding that the defendant lacked standing to challenge the
search of Room 1332, the Court noted that in any event the search warrant
was not defective:
"[T]he transposition of room numbers was clearly
accidental. There was no question but that the room
which was intended to be the object of the search and
which was searched was Room 1332."
546 F.2d at p. 497, citing United States v. Campanile, 516 F.2d 288, 291
(2d Cir. 1975).
The Court rejects Larracuente's argument that the transposition of
numbers in the search warrant application at issue renders the warrant
defective. A reading of the entire affidavit indicates that no confusion
existed as to the premises to be searched. The caption of the affidavit
listed 62-65 Forest Avenue. The affidavit itself contained several
allegations as to 62-65 Forest Avenue. The search warrant issued by
Magistrate Chrein listed 62-65, twice. Agent Ferbrache undertook the
surveillance and investigation of 62-65 Forest Avenue as stated in his
affidavit. It was he, along with six others, who undertook the search at
62-65 Forest Avenue. There is no evidence of any confusion whatsoever as
to the premises under surveillance and subsequently searched.
In sum, there can be no real doubt as to which of the two premises was
under investigation. The apparently inadvertent transposition of street
numbers in two places in the affidavit is a mere technical defect that
should not void the issuance of the warrant, especially where, as here,
the executing officer is also the affiant who applied for the warrant
(see 1 W. Ringel, Searches & Seizures, Arrests and Confessions §
5.5(a), at p. 5-22.3 ).
Accordingly, Larracuente's motion to suppress on the ground that the
search warrant is void by reason of the transposition of street numbers
in the application, is denied.
b) Probable Cause.
It is a constitutional mandate that no search warrant shall issue
without probable cause. This proscription "has roots that are deep in our
history" (Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4
L.Ed.2d 134 ). In order to determine whether probable cause exists
for the issuance of a search warrant, as Judge Altimari of this Circuit
recently noted, the applicable standard is as follows:
"Under Illinois v. Gates, 462 U.S. 213 [103 S.Ct.
2317, 76 L.Ed.2d 527] (1983), probable cause for a
search warrant is established if the `totality-of
the-circumstances' indicate a probability of the
criminal activity. Id. at 230-232 [103 S.Ct. at
2328-2329]. `[P]robable cause is a fluid concept
— turning on the assessment of probabilities in
particular factual contexts — not readily, or
even usefully, reduced to a neat set of legal rules.'"
United States v. Rowell, 903 F.2d 899, 902 (2d Cir. 1990).
In reviewing the issuance of a search warrant, it is well settled that
the Magistrate's finding of probable cause is to be accorded "substantial
deference" (see United States v. Travisano, 724 F.2d 341, 345 [2d Cir.
Applying these principles to the facts of this case, the Court finds
that the search warrant was not improvidently issued by Magistrate Chrein
and was based upon sufficient probable cause.
The investigation began after receiving "tips" from two
independent informants. The investigators rented 64 tapes from
Video Latino, 35 of which were "bootlegs". They later purchased
approximately 490 bootleg videocassettes over a three-month
period, but only after an extensive surveillance of The Record
Shop, the Video Latino and 62-65 Forest Avenue. The defendants
were frequently observed transporting large cardboard boxes, some
with the name "BASF", back and forth from Video Latino and The
Record Shop, to 62-65 Forest Avenue. Finally, based upon
Ferbrache's experience in investigating the bootleg videocassette
industry, he concluded that such
actions by Larracuente and the co-defendants, along with the
activity occurring at 62-65 Forest Avenue, is consistent, if not
indicative, of illegal activity.
Based upon the extensive investigation, surveillance and information
gathered by the FBI as set forth in Agent Ferbrache's detailed affidavit
presented before Magistrate Chrein, it cannot be said that the warrant
was issued without probable cause. Viewing the totality of circumstances
gleaned from the search warrant application, the activities of
Larracuente at 62-65 Forest Avenue indicate a probability of criminal
activity. Accordingly, Larracuente's motion to suppress on the ground
that no probable cause existed for the issuance of the warrant, is
c) The Handgun.
The search warrant specifically authorized a search of "the first floor
of a two-story house located at 62-65 Forest Avenue" (emphasis
supplied). In his descriptive report following the search, Special Agent
Kevin O'Grady described the search of the second floor, as follows:
"During a search of the upstairs master bedroom, a
handgun and ammunition were found. Those items were
then seized. Details regarding the discovery of those
items is as follows:
On the top shelf of a closet in the corner of the
bedroom, with its door open, and in clear view when
standing in the bedroom, was a .25 caliber
semi-automatic handgun. After observing the handgun
while standing in the room, the investigating Agent
went to the handgun and examined it. The handgun was
found to be a Raven Arms model MP-25 semi-automatic
pistol, loaded with a magazine, with a round
chambered, and the safety on. Next to the handgun on
the top shelf of the closet was a loaded banana
While continuing the search of the closet, a white
plastic bag was observed."
O'Grady Report dated February 21, 1990, at p. 1 (emphasis supplied).
The purported justification for this search and seizure is "a
protective sweep of the house, accounting for all individuals present at
the residence" (O'Grady Report dated 2/26/90, at p. 1), for which the
Government relies on the authority of United States v. Escobar,
805 F.2d 68, 71 (2d Cir. 1986).
As stated above, there exists the constitutional requirement that the
warrant "particularly describ[e] the place to be searched". The
underlying purpose is to define the legal boundaries of the authorized
search. If, for example, a warrant specifically authorizes the search of
the first floor of a particular premises, like here, then it is improper
to search the second floor in the absence of a recognized exception to
the warrant requirement (see 2 W. LaFave, Search and Seizure, A Treatise
on the Fourth Amendment § 4.10[a], at p. 314 ). Thus, the issue
presented here is whether the search of the closet of the master bedroom
on the second floor comes within an exception to the warrant
In Escobar, the court held that once lawfully in the place to be
searched, the executing officers may conduct a security sweep to look for
persons who might destroy evidence or pose a threat to the officers'
safety. Any evidence found during the course of this security sweep will
not be suppressed, the justification being that although the officers may
not "search" for evidence, they may seize objects found in plain view
(see United States v. Londono, 659 F. Supp. 758, 762 [E.D.N.Y. 1987]).
Special Agent O'Grady admits in his report, however, that this
was a "search", rather than a "security sweep". In fact, after
the gun and ammunition were found on the top shelf, the agents
"continu[ed] the search of the closet" (O'Grady Report dated Feb.
21, 1990, at p. 1). Even assuming that the officers' presence on
the second floor was justified, and that the closet door in the
master bedroom was open, after ascertaining that there were no
persons who might have been "lurking" about, there was no
justification for the continued search of the closet. This is
clearly beyond the scope of a security sweep. There was nothing
in the factual scenario at issue that
could reasonably support the conclusion that the officers
reasonably feared that others would be "lurking" in the house who
might pose a threat to their safety, or that there was a
likelihood that evidence would be destroyed (see Escobar, 805
F.2d at p. 71).
In addition, the Government does not claim, nor do the facts support a
finding, that once in the house, exigent circumstances arose. In sum, the
Court finds that the "search" of the closet was not "a quick and limited
pass through the premises to check for third parties" (id.), but rather
an unauthorized search violative of the Fourth Amendment.
Accordingly, Larracuente's motion to suppress the evidence seized from
the top shelf of the closet in the master bedroom on the second floor, is
granted. The Court finds that the search was not only beyond the scope of
the warrant issued, but also that it exceeded the type of "security
sweep" envisioned by Escobar and was not within the purview of the "plain
view" doctrine (see United States v. Jenkins, 876 F.2d 1085, 1088 [2d
Based upon the foregoing, the defendant's motion for a bill of
particulars is denied, as is his motion for a severance. The defendant's
motion to suppress all physical evidence seized from the 62-65 Forest
Avenue premises is denied, except that it is granted to the extent that
the evidence seized from the closet of the master bedroom on the second
floor is suppressed.
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