The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
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.
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
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
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. ¶ 9. Inspector
Kezer states that at that time, he believed that the warrant
authorized him to search for and seize ...