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U.S. v. LARRACUENTE

June 25, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
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.

FACTUAL BACKGROUND

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.

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 ¶ 29).

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 representatives.

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 premises.

Larracuente now moves for a bill of particulars, severance, and suppression.

THE MOTIONS

1) Bill of ...


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