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
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
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.
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.
REPORT AND RECOMMENDATION
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
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. § 636(b)(1)(B).