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U.S. v. YU

January 14, 1991

UNITED STATES OF AMERICA,
v.
MASON K. YU, JR., DEFENDANT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Defendant Mason K. Yu, Jr. ("Yu") was charged in an indictment filed on November 9, 1990 with two counts of making false statements in violation of 18 U.S.C. § 1001. Yu now moves to suppress (1) two New York City Police Department Firearms Disposition/Registration Certificates (hereinafter "firearms registration certificates") and one firearms sales receipt seized during a search of his apartment on August 24, 1990 on the grounds that the seizure exceeded the scope of the search warrant; and (2) two Bureau of Alcohol, Tobacco and Firearms ("ATF") Firearms Transaction Records obtained as a result of the aforementioned seizure. For the reasons set forth below, defendant's motion is denied.

BACKGROUND

On August 23, 1990 Yu was arrested in his apartment in Forest Hills, Queens by United States Postal Inspector William E. Kezer ("Inspector Kezer") on a complaint filed before Magistrate Francis the previous day charging Yu with one count of wire fraud in violation of 18 U.S.C. § 1343. Id. ¶¶ 4-5. The complaint alleged that Yu transmitted or caused to be transmitted in interstate commerce various writings to Dell Computer Corporation ("Dell") as part of a scheme to obtain computer equipment from Dell by false pretenses. Id., Exh. A. Upon arresting Yu, Inspector Kezer and the accompanying officers conducted a protective sweep of Yu's apartment during which Inspector Kezer noted the presence of two shotguns and an automatic rifle in open view leaning against the wall and on the floor. Id. ¶ 5.

That same day Inspector Kezer began preparing an affidavit in application for a search warrant for the apartment. The final version of that affidavit states in relevant part:

  1. . . . I make this application in support of the
  Government's application for a warrant to search
  the premises . . . and to seize the following
  items: . . .; and other property, documents and
  things which constitute evidence of the commission
  of or are designed or intended as a means of
  violating of [sic] the federal wire fraud statute
  and firearms statute.
  8. Based on the foregoing facts, there is probable
  cause to believe that, within the premises . . .
  are located those items described in paragraph 1
  above, which items constitute evidence, fruits,
  and/or violations of Title 18, United States Code,
  Sections 1343 and 922(g).
  WHEREFORE, deponent prays that a warrant be issued
  pursuant to Rule 41 of the Federal Rules of
  Criminal Procedure, to search the premises . . .
  and therein to search for and seize: . . . ; and
  other property, documents and things which
  constitute evidence of the commission of or are
  designed or intended as a means of violating the
  federal wire fraud statute.

Kezer Aff., Exh. B at 1-2 & 5-6.*fn1

On August 24, 1990, before Inspector Kezer submitted his search warrant application for approval, David Williams, defendant's probation officer, told Kezer that Yu had stated in a phone conversation with Williams earlier that day that Yu had thrown the two shotguns and the rifle into the Harlem River. Kezer Aff. ¶ 7. The record does not indicate why that information was not included in Inspector Kezer's search warrant affidavit.*fn2

That afternoon, upon receiving Inspector Kezer's application, Magistrate Caden in the Eastern District of New York issued a search warrant authorizing federal agents to search for and seize the following items in Yu's apartment, number 15P, located at 104-40 Queens Boulevard in Queens, New York:

  Computer, electronic and technical equipment;
  including computer hardware and software, manuals
  and other computer, electronic and technical
  literature; purchase orders, invoices, shipping
  receipts, payment records and other documents
  relating to the purchase and/or delivery of
  computer, electronic and technical equipment and
  literature; weapons and ammunition; and other
  property, documents and things which constitute
  evidence of the commission of or are designed or
  intended as a means of violating the federal wire
  fraud statute.

Kezer Aff., Exh. B.

Inspector Kezer states in an affidavit submitted in opposition to this motion that at the time the warrant was issued, he had not noticed the discrepancy between the two alleged statutory violations referred to in paragraph 1 of his search warrant affidavit and the single statutory violation referred to in the wherefore clause. Kezer Aff. ΒΆ 9. Inspector Kezer states that at that time, he believed that the warrant authorized him to search for and seize ...


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