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June 28, 1991


The opinion of the court was delivered by: Larimer, District Judge.


Defendant filed motions to dismiss the indictment and to suppress evidence obtained in violation of the Fourth Amendment. The motions were referred to United States Magistrate Kenneth R. Fisher, pursuant to 28 U.S.C. § 636(b)(1)(B) to conduct a hearing and to issue a report and recommendation. The Magistrate issued a lengthy, thirty-three page Report and Recommendation on November 27, 1990. The Magistrate recommended that the motions be denied.

Defendant duly filed written objections to the Report and Recommendation and the matter is before the Court to review the Magistrate's Report pursuant to 28 U.S.C. § 636(b)(1)(B); and Fed.R.Civ.P. 72(b).

The motions all relate to the conduct of Special Agent Steven Meyerson, an investigator with the Internal Revenue Service (IRS) in Rochester, New York. Defendant claims that because of Meyerson's conduct with his estranged wife, the indictment against him should be dismissed because the conduct was sufficiently outrageous as to constitute a violation of due process. In the alternative, defendant claims that the Court in its supervisory capacity should dismiss the indictment. Defendant also claims that his wife burglarized his office and removed certain documents which she gave to Agent Meyerson. Miceli claims that this "burglary" was orchestrated by Meyerson and therefore any fruits of the illegal "search" must be suppressed under the Fourth Amendment.

The Magistrate conducted an evidentiary hearing and he recounts in detail the testimony from the hearing. The testimony need not be recounted here in detail. Much of that testimony is troubling because there can be little doubt that Agent Meyerson acted contrary to IRS policy in the conduct of the investigation. Meyerson's conduct was lacking in several respects. Special Agent Donald M. Cerra, the Group Manager of the IRS Investigation Division, testified that it was not proper and showed poor judgment for an investigator to wine and dine the wife of the target of a criminal investigation. If Mrs. Miceli was truly an "informant," Meyerson failed to follow procedure concerning his contacts with her.

It is clear that Meyerson's social relationship with the wife of the target of a criminal investigation was inappropriate. Although Mrs. Miceli was estranged from her husband at the time, Meyerson's social involvement with the target's spouse during the investigation certainly raises obvious concerns about the impartiality of the investigation and the motives for pursuing criminal charges.

The Magistrate recounts Meyerson's activities with Mrs. Miceli and they are supported in the record. Meyerson himself admitted at the hearing that he had several social contacts with Mrs. Miceli while he was also conducting a criminal investigation concerning her husband.

As unseemly as Meyerson's actions were, the question remains whether dismissal of this indictment is warranted. Not every misstep or malfeasance by a law enforcement officer requires suppression of evidence or dismissal of an indictment.

I believe that the Magistrate has correctly analyzed the law concerning the defendant's claim that the conduct of Meyerson was such as to warrant dismissal of the indictment for violation of due process.

I agree with the Magistrate that even if such a defense exists, the conduct here was not so outrageous as to warrant dismissal. First of all, and of great significance is the fact that this conduct was not directed at the defendant himself but at his estranged spouse who was apparently quite willing to cooperate with Agent Meyerson both socially and professionally. Such conduct, directed toward a third-party, can rarely be used by a defendant to claim that he was the victim of impermissible government conduct. The Magistrate correctly concluded that Meyerson's conduct was not so outrageous as to shock the sensibilities of the Court in light of the fact that it was primarily directed toward Mrs. Miceli who willingly cooperated with Meyerson.

The Magistrate correctly noted in his decision (at p. 23-24) that even in cases where the conduct was more egregious (for example, where there was sexual activity with the defendant or target of the investigation), reversal was not required because the conduct was not so outrageous as to require dismissal of the criminal charges. Although Meyerson's conduct should not be condoned, it is not of such a nature as to implicate defendant's due process rights.

I also adopt the Magistrate's reasoning in rejecting defendant's claim that under the Court's "supervisory" powers, the indictment should be dismissed, presumably as a sanction for impermissible conduct by a law enforcement officer.

Although there may be instances where the court can utilize its supervisory powers to exclude evidence taken from a defendant, this is not such a case. The court's power to "sanction" the executive branch is very limited especially concerning matters that occur outside of the courthouse. In my view, the Magistrate correctly analyzed the law in this area and I adopt his recommendation that there is no basis here for dismissal of the indictment.

The remaining claim relates to an alleged violation of the Fourth Amendment. Defendant claims that Meyerson counseled his wife to burglarize his office and this constitutes an impermissible search without a warrant and that the fruits of that search, documents identified at the hearing as Exhibit 1-11, should be suppressed.

According to Mrs. Miceli, Meyerson did suggest and urge her to break into her husband's office to obtain evidence. She entered the office, removed certain financial information and turned it over to Meyerson at his request. Meyerson denied ever suggesting a burglary or receiving the documents from Mrs. Miceli.

Although there are troubling aspects to this claim, the Magistrate credited Meyerson's testimony that he did not encourage Mrs. Miceli to commit the burglary. Several other IRS agents testified that these disputed exhibits were not in the investigative file until long after Meyerson had left Rochester. They suggested that these exhibits had been obtained from other sources and not Meyerson. I accept the Magistrate's recommendation here, especially concerning the testimony of the other IRS agents concerning the documents.

These documents were not the linchpin of the proof against Miceli. The Magistrate determined that virtually all of the documents could have been — and probably were — obtained from third-parties including the IRS itself, banks and other individuals who dealt with the defendant. Under these circumstances, there is no basis to suppress these exhibits.


I adopt the Magistrate's Report and Recommendation filed November 27, 1990. Defendant's motions to dismiss the indictment and to suppress evidence are denied.



Defendant moves for an order dismissing the indictment and he moves to suppress evidence allegedly seized from his office on Empire Blvd. Defendant seeks to invoke the court's supervisory powers to dismiss and to suppress. He contends also that the indictment and evidence supporting it was procured in violation of the due process clause because the government, or so he contends, engaged in gross misconduct and bad faith violations of the Internal Revenue Guidelines Manual. In addition, defendant moves to suppress evidence seized in an alleged warrantless search of defendant's office in violation of the Fourth Amendment.

The government consented to an evidentiary hearing, which was held. The parties have subsequently submitted briefs on the motion to dismiss and to suppress. These motions were referred to me by Judge Larimer pursuant to 28 U.S.C. ยง 636(b)(1)(B). The ...

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