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March 17, 1992


The opinion of the court was delivered by: HOWARD G. MUNSON


 Presently before the court are defendant's omnibus pre-trial motions. Oral argument was heard on February 14, 1992 in Syracuse, New York.


 Defendant is charged with five counts of knowingly possessing firearms in or affecting interstate commerce, having previously been committed to a mental institution, in violation of the Gun Control Act of 1968, 18 U.S.C. § 922(g)(4), as amended by the Firearm Owner's Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449, 452 (1986).

 On or about November 8, 1979, defendant was involuntarily placed in the St. Lawrence Psychiatric Center pursuant to New York Mental Hygiene Law § 9.27. This placement was made at the request of defendant's parents. Under § 9.27, a person can be placed in a mental institution based upon certificates filed by two physicians finding the defendant to be subject to involuntary detention. After sixty days, defendant requested that his confinement be converted from involuntary to voluntary status pursuant to § 9.13 of the Mental Hygiene Law. Defendant was discharged from the St. Lawrence Psychiatric Center on August 27, 1980.

 In late 1989, agents of the Bureau of Alcohol, Tobacco and Firearms ("ATF") received the first of two letters they believed to be written by defendant. The first letter states that "all kinds of weapons" could be found "off one of Watertown's city bridges . . . (need scuba)," and is signed by X. No return address is listed. The second letter is dated May 1, 1991 and states in part, "gentlemen, something for the future," followed by a listing of explosives and explosive components. The letter is signed by Larry Waters and the return address is 541 Stone Street, Watertown. ATF agents believed the handwriting in both letters to be the same.

 In response to these letters, ATF Agent Harold Maxwell visited 541 Stone Street on May 8, 1991 to interview defendant. The house is apparently owned by defendant's parents, but defendant also resides there. Defendant was not at home when Agent Maxwell arrived, but his parents agreed to talk with the Agent. Defendants' parents told Agent Maxwell that in 1979 defendant had his pistol permit revoked and several handguns confiscated after he pointed a pistol at someone. When defendant arrived home approximately one hour later, defendant also agreed to talk to Agent Maxwell. He admitted to writing the two letters and to owning several guns and corresponding ammunition. Defendant then produced six rifles, three shotguns, one machine gun, and a large quantity of ammunition for Agent Maxwell's inspection. During the interview, defendant discussed subversive activities, espionage, the CIA, and his affiliation with "the company." Agent Maxwell later described defendant's speech as "rambling, disjointed, and difficult to follow." See Affidavit of Harold Maxwell, Document ("Doc.") 12, Exhibit ("Exh.") B, Attachment B, at 3. At the conclusion of the interview, defendant Waters told Agent Maxwell that he was employed by the CIA and wrote another letter stating that "ATF regulations concerning in the service of the gov. related to IRS registered AFFIL, and immigration computer code name concerning destructive devices that control law." Id. at

 After this interview on May 8, 1991, Agent Maxwell contacted several other law enforcement officials seeking information concerning defendant. Maxwell also received a written statement from Dr. Lee Hanes, Director of the St. Lawrence Psychiatric Center, setting forth the dates which defendant had been a patient at the institution.

 With this information in hand, on May 16, 1991 Agent Maxwell applied for a search warrant of defendant's residence at 541 Stone Street. The application was supported by an affidavit reciting the aforementioned information. Based on Maxwell's affidavit, Magistrate-Judge Gustave J. DiBianco issued a search warrant authorizing the government to search all buildings and appurtenances at 541 Stone Street. The search apparently uncovered five weapons: three bolt action rifles (counts 1-3), a semi-automatic carbine (count 4), and a lever-action rifle (count 5).

 Defendant now moves for an order: (1) dismissing the indictment on the ground that an essential element of the crimes charged is not pleaded, (2) suppressing any tangible evidence recovered from the search due to defects in the search warrant, (3) suppressing statements made by defendant to Agent Maxwell, (4) requiring the government to provide Brady material, and (5) permitting defendant to make further motions. Defendant had also moved for a bill of particulars, but withdrew that motion based on recent government disclosures.


 A. Motion to Dismiss

 Defendant moves to dismiss the indictment on the ground that there is no evidence to establish that he was previously "committed" to a mental institution as required by 18 U.S.C. § 922(g)(4). Specifically, defendant contends that he was never detained in an institution by judicial order, something he contends is a prerequisite to establishing actual commitment.

 Section 922(g)(4), under which defendant is charged in each count of the indictment, provides in pertinent part:

 It shall be unlawful for any person--

 (4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

 to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

 The statute does not define the term "committed," nor has any court in this circuit addressed the issue of whether placement in a mental institution pursuant to § 9.27 of the New York Mental Hygiene Law is a "commitment" for purposes of 18 U.S.C. § 922(a)(4).

 Defendant contends that the consistent use of the term "admission" and the conspicuous absence of the term "commitment" in § 9.27 clearly indicates that involuntary placement in a mental institution under a two-physician certificate is not a formal "commitment" under 18 U.S.C. § 922(g)(4). Defendant argues that the principles set forth in United States v. Giardina, 861 F.2d 1334 (5th Cir. 1988) and United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973), cases which found that hospitalization under Louisiana's and Nebraska's mental health laws did not constitute commitments, are equally applicable under New York law.

 The government counters that an involuntary admission by a two-physician certificate under New York Mental Hygiene Law § 9.27 is a formal "commitment" as defined by 18 U.S.C. § 922(g)(4). According to the government, it was the intent of the New York Legislature under Article 9 of the Mental Hygiene Law to provide for commitments of patients in civil proceedings without judicial involvement. The government further contends that facts involved in Giardina and Hansel are clearly distinguishable from the facts of the case at bar. Last, the government argues that, given New York's statutory scheme, it was Congress's intent to include a person such as defendant within the proscription of 18 U.S.C. § 922(g)(4).

 Whether defendant was "committed" to a mental institution is a question of federal law, but in making that determination, the court must consider state law. See Giardina, 861 F.2d at 1335 (citing Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 74 L. Ed. 2d 845, 103 S. Ct. 986 (1983)). Once a determination based on state law is made, ...

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