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UNITED STATES v. HENRY

August 26, 1994

UNITED STATES OF AMERICA,
v.
LEROY HENRY, BRIAN YOUNG, MARK ESPOSITO, JEFFREY SALGADO, SHEFTON HUNTER, IRWIN RAYMOND SIMMONS, CHANEL HARPER, HERMAN YOUNG BROWN, DEVIN PARONT, FRAZER DANIEL LENNARD, PHILIP FRANCHINA, and ROBERT INGLESIAS, Defendants.


Schwartz


The opinion of the court was delivered by: ALLEN G. SCHWARTZ

ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 BACKGROUND

 The indictment before the Court, S 93 Cr. 690, charges twelve defendants under 28 U.S.C. § 371 with conspiracy to commit offenses including mail fraud in violation of 18 U.S.C. §§ 1341 & 2, and interstate transportation of stolen motor vehicles in violation of 18 U.S.C. §§ 2312 & 2. Indictment at P 1. More precisely, the Government alleges that the named defendants unlawfully: 1) arranged leases of automobiles for persons with inadequate credit histories by creating leasing contracts that contained false and fraudulent information; 2) arranged financed contracts of sale of automobiles by submitting false and fraudulent information to the lienholders; 3) concealed the fact that the purchasing and leasing contracts contained false and fraudulent information; 4) caused certain mail matter to be delivered in order to obtain money and property by means of false and fraudulent pretenses; and 5) knowingly transported stolen motor vehicles in interstate commerce. Indictment PP 4-8, 9, 10, 11, 12, 13, 14 and 16.

 Defendants Leroy Henry, Chanel Harper, Mark Esposito, Shefton Hunter, and Devon Paront have submitted various discovery and non-discovery motions to the Court. We divide defendants' motions by defendant and topic, and address each request below.

 DISCUSSION

 Defendant Henry's Pre-trial Motions

 Henry has requested this Court to order the following relief: 1) disclosure of the Grand Jury minutes; 2) suppression of evidence, or, alternatively, a suppression hearing concerning evidence seized from defendant's place of employment, World Class Leasing, Inc. ("WCL"); 3) disclosure by the Government of all co-conspirator and co-defendant statements; 4) a pre-trial hearing to determine the admissibility of co-conspirator statements; and 5) the right to join in all motions made on behalf of the co-defendants. For the reasons set forth below, we deny Henry's motions in their entirety with the exception that he is permitted to join in the motions of his co-defendants.

 1. Disclosure of Grand Jury minutes

 Henry requests, pursuant to Fed.R.Crim.P. 6(e)(3)(c)(ii), *fn1" that the Court direct the government to furnish his counsel with a transcript of the Grand Jury proceedings. The secrecy of the Grand Jury proceeding, however, is central to our criminal justice system. See, e.g., United States v. Procter & Gamble, 356 U.S. 677, 682, 2 L. Ed. 2d 1077, 78 S. Ct. 983 (1958) ("The grand jury as a public institution serving the community might suffer if those testifying today knew that the secrecy of their testimony serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow"). As a result, a party seeking disclosure of Grand Jury minutes in this Circuit confronts a stringent standard, namely, he must "show a particularized need that outweighs the government's strong interest in secrecy." United States v. Moten, 582 F.2d 654, 662 (2d Cir.) ("[a] review of grand jury minutes is rarely permitted without specific factual allegations of governmental misconduct"), cert. denied, 111 S. Ct. 273 (1990).

 Defendant Henry has not made this showing. He alleges conclusively that: (1) the Indictment might be based on insufficient evidence, specifically, founded excessively upon unreliable hearsay; and (2) the prosecutor might not have advised the Grand Jury that the testimony it heard was in fact hearsay evidence. As a threshold matter, we note that in light of the Supreme Court's recent decision in United States v. Williams, 112 S. Ct. 1735, 118 L. Ed. 2d 352 (1992), serious questions exist as to whether this Court even possesses the supervisory power to dismiss an indictment on the grounds advanced by Henry even were we to assume them to be true. In Williams, the Supreme Court restricted our use of supervisory powers to enforcement of standards of prosecutorial conduct explicitly drafted and approved by Congress, and admonished against efforts by trial courts to use these powers as a means of prescribing such standards, id., at 1741-42; therefore, doubt surrounds Henry's capacity to base a motion to dismiss the indictment on the grounds upon which he justifies disclosure of the Grand Jury minutes. In this Circuit, moreover, it is well-established not only that "an indictment if valid on its face, may not be challenged on the ground that it is based on inadequate evidence,." United States v. Casamento, 887 F.2d 1141, 1182 but also that a defendant's mere speculation as to what occurred in front of the Grand Jury does not warrant inspection of the minutes by defense counsel. See United States v. Wilson, 565 F. Supp. 1416, 1436 (S.D.N.Y. 1983); United States v. Abrams, 539 F. Supp. 378, 389 (S.D.N.Y. 1982) (defendant must base showing on more than "pure speculation"); United States v. McGrath, 459 F. Supp. 1271, 1273 (S.D.N.Y. 1978) (defendant's showing must include "more than unsubstantiated, speculative assertions of improprieties in the proceedings); 8 J. Moore, Moore's Federal Practice, Rules of Criminal Procedure, P 6.05[3], at 6-141-42 (February 1992) (general allegations that the transcripts might provide evidence).

 Finally, the Court has reviewed the Grand Jury minutes in camera, and finds no evidence to support Henry's request. In our view, the evidence presented at the proceedings was not unreliable, and the prosecutor provided a clear explanation to the jurors regarding the presentation of hearsay evidence and the Grand Jury's right to request firsthand testimony. Accordingly, for all of the foregoing reasons, we deny Henry's motion for disclosure of the Grand Jury minutes. *fn2"

 2. Request for a suppression of evidence or alternatively a suppression hearing:

 Henry also seeks suppression of the evidence seized from the WCL office pursuant to a search warrant. Henry poses two alternative reasons for suppressing the evidence, namely: 1) the search warrant was invalid because the affidavit supporting the warrant failed to provide sufficient probable cause; and 2) the search warrant was invalid because it was vague and overbroad.

 A. Probable Cause

 In this Circuit, it is well established that a search warrant is properly supported by probable cause when the "totality-of-the-circumstances" indicate a probability that: 1) criminal activity exists; and 2) evidence of such activity will be found at the location to be searched. see Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); U.S. v. Rowell, 903 F.2d 899, 903 (2d Cir 1990) U.S. v. Millan-Colon, 836 F. Supp. 1007, 1017 (S.D.N.Y. 1993). This is a "flexible and common-sense standard," Texas v. Brown, 460 U.S. 730, 742, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983), which the Court must apply in a practical light. See Gates, 462 U.S. at 241.

 In our view, the affidavit supporting the search warrant satisfies the foregoing "totality of the circumstances" test, establishing a strong probability that criminal activity existed and that evidence of that activity was located at the WCL office. This affidavit, consisting of the testimony of Special Agent Kevin J. White of the Federal Bureau of Investigation, drew from information that he had received from Irwin Raymond Simmons, cooperating witnesses and victims. Affidavit of Special Agent Kevin J. White P 2. These sources confirmed that: 1) Simmons was involved in a scheme whereby he would create false documents, sometimes through the use of credit information of unsuspecting individuals, in order to obtain cars for persons with bad or no credit; and 2) Simmons would send, via facsimile, fraudulent documents related to this scheme to the WCL office. Id, PP 2-4, 5. This information provides ample probable cause to support a search of WCL.

 We note, moreover, that in reviewing determinations of probable cause, this Court owes substantial deference to the Magistrate Judge's finding. U.S. v. Feliz-Cordero, 859 F.2d 250, 252 (2d Cir. 1988); see also Rowell, 903 F.2d at 902 ("On appellate review, a determination of probable cause deserves 'great deference' and will be upheld so long as there was a 'substantial basis for . . . concluding that a search warrant would uncover evidence of wrongdoing.'") (citations omitted); United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) (a magistrate's finding of probable cause represents a substantial factor supporting the validity of any warrant, and resolves the truly close cases in favor of upholding the warrant). Such deference is particularly justified here, where the Magistrate Judge not only reviewed the Government's evidence, but required the Government to specify additional sources of its information. See Gov't Mem. at 15 (indicating that the Magistrate Judge directed the Government to identify, in a handwritten addendum, additional sources of the information contained in the affidavit in support of the search warrant).

 In light of the foregoing, we decline to set aside the search warrant for the WCL office on the ground of insufficient probable cause.

 B. Breadth of the Warrant

 Henry also argues that the search warrant was overly broad, and consequently should be declared invalid. The Fourth Amendment commands that "no warrants shall issue [unless] particularly describing the place to be searched and the persons or things to be seized." U.S. Const. Amend. IV. These requirements are satisfied "where the description of materials to be seized enables the searcher to reasonably ascertain and identify the things authorized to be seized." United States v. Millan-Colon, 836 F. Supp. 1007, 1018 (S.D.N.Y. 1993); see United States v. George, 975 F.2d 72, 74 (2d Cir. 1992). The Second Circuit has also, noted, however, "Courts tend to tolerate a greater degree of ambiguity where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant." United States v. Young, 745 F.2d 733, 759 (2d Cir. 1984), cert denied 470 U.S. 1084, 105 S. Ct. 1842, 85 L. Ed. 2d 142 (1985); see United States v. Buck, 813 F.2d 588, 590 (2d Cir. 1987).

 In the case at bar, Special Agent White's affidavit concededly provided the Magistrate Judge with a lengthy list of items to be searched at WCL's office. As noted supra at 6, however, at the time of the Government's application for the warrant, the investigating agent, White, had been informed that fraudulent documents were being faxed to WCL's office, but had not been given specific information as to where the documents were located within that office. Under these circumstances, where more specificity regarding items to be searched was not possible, it was reasonable for the Magistrate Judge to approve the instant warrant, which mirrored the supporting affidavit's list of items to be searched. See Andresen v. Maryland, 427 U.S. 463, 479, 96 S. Ct. 2737, 2748, 49 L. Ed. 2d 627 (1976) (upholding a warrant including an "exhaustive list of particularly described documents," and allowing a search for "other fruits, instrumentalities and evidence of crime at this [time] unknown."); United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990) ("[A] warrant [permitting] officers to examine many papers . . . to determine if they are within the described category . . . recognizes the reality that few people keep documents of their criminal transactions in a folder marked 'drug records.'"). It is also critical for our overbreadth analysis that the warrant specified the crimes that were being investigated, namely, mail fraud and interstate transportation of stolen vehicles. See United States v. George, 975 F.2d at 75 (noting that the Second Circuit has generally "upheld warrants authorizing the seizure of 'evidence,' 'instrumentalities,' or generic classes of items where a more precise description was not possible in the circumstances [and] the warrant identified a specific illegal activity to which the items are related."). These factors persuade us that the search warrant for WCL was not overly broad.

 Accordingly, we deny Henry's request to suppress evidence seized from WCL pursuant to the search warrant. *fn3" Nor, clearly, do we find it ...


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