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U.S. v. LONGO

August 5, 1999

UNITED STATES OF AMERICA,
v.
THOMAS G. LONGO, DEFENDANT.



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

                  DECISION AND ORDER

INTRODUCTION

Presently before this Court are Defendant Thomas G. Longo's appeal of the Decision and Order of the Honorable Leslie G. Foschio, United States Magistrate Judge, filed on February 26, 1999, and Longo's objections to the Report and Recommendation of Judge Foschio, also filed on February 26, 1999. Longo is charged in a four count Indictment, dated September 19, 1997, with violations of 21 U.S.C. § 841(a)(1) and 846, 18 U.S.C. § 2, and 18 U.S.C. § 1952(a)(3). Specifically, Longo is charged with conspiracy with intent to distribute 100 kilograms or more of marijuana, with attempt to possess with intent to distribute 100 kilograms or more of marijuana, with conspiracy to travel interstate, and traveling interstate, and with the intent to carry on an unlawful activity through the use of a business enterprise involving the unlawful distribution of marijuana. On February 4, 1999, this Court referred this case to Judge Foschio for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

On October 5, 1998, Longo filed extensive Omnibus Motions before Judge Foschio. By these motions, Longo made various discovery requests and, in addition, sought suppression of evidence and/or for evidentiary hearings, and sought another hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). On February 26, 1999, Judge Foschio filed the Decision and Order, which primarily addresses discovery and disclosure issues, and the Report and Recommendation, which primarily addresses the suppression and hearing motions. Most of Longo's requests were denied by Judge Foschio. Longo now appeals Judge Foschio's decision and objects to Judge Foschio's recommendations almost in their entirety.*fn1 Longo filed his appeal of the Decision and Order and his objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3.

By his appeal of the Decision and Order, Longo disputes Judge Foschio's denial of Longo's Motions: (1) for Disclosure of Records Relating to the Search at his Law Office; (2) to Produce Brady Material; (3) for Disclosure of Impairments in the Testimonial Capacity of Prosecution Witnesses; (4) for Discovery of Specified Items; (5) for Request for Notice Pursuant to Fed. R.Crim.P. 12(d)(2); (6) for Access to Sealed Court Documents; (7) for Production of Statements of Persons Who are Not Prospective Government Witnesses; (8) for Disclosure of Non-Privileged Grand Jury Information; (9) for a Bill of Particulars; (10) to Preserve Evidence and Access to Potential Witnesses; and (11) Longo appeals Judge Foschio's decision to grant the Government's Motions to Disclose.*fn2

By his objections to the Report and Recommendation, Longo opposes Judge Foschio's recommendations that: (1) the search warrant of Longo's computer files was supported by probable cause; (2) the warrant was sufficiently particular; (3) a warrantless search was not conducted; (4) the warrant was conducted in good faith; (5) a Franks hearing is not warranted; (6) suppression of recorded statements should be denied; (7) the attorney-client privilege was not violated; (8) Longo's Sixth Amendment rights were not violated; (9) the Government did not violate DR 7-104; (10) Longo's Fifth Amendment rights were not violated; and (11) Longo's requests for an evidentiary hearing be denied.

For the reasons set forth below, this Court denies Longo's appeal of the Decision and Order ("D & O") and adopts the Report and Recommendation ("R & R"), thereby denying Longo's motion to suppress evidence and/or for evidentiary hearings, and for a Franks hearing.*fn3

BACKGROUND

The charges against Longo arose after the arrest of Lester Williams and William Cope in March of 1996, following their attempt to purchase 1,000 pounds of marijuana from undercover agents. (R & R at 3-4.) At the time of arrest $146,000 was seized, which was to be used as a down payment on the marijuana. (Meinhardt Aff. at 2.) Williams and Cope agreed to cooperate with the Government, and information was developed regarding Longo's participation in providing a portion of the funds that were to be used to purchase the marijuana. (R & R at 4.)

Williams told the Government that he and Longo were partners in a bar/restaurant named Wizard's Inn. (R & R at 4.) In July of 1995 the establishment burned to the ground and Longo received a settlement check for $130,000, which was deposited into his business account. (R & R at 4.) Caroline Schweter, Longo's legal secretary, cut two checks, each for $65,000, made payable to Williams and Longo. (Gov't Omnibus Resp. at 4.) Longo and Williams traveled to Caesar's Palace, Atlantic City, on March 1, 1996, and deposited the checks at the casino. (Meinhardt Aff. at 3.) Within the next 24 hours they converted the funds to cash and returned to Cleveland. (Meinhardt Aff. at 3.)

Williams supplied the Government with a Promissory Note, backdated to February 29, 1996, and a Purchase Agreement signed by him and Longo. (Meinhardt Aff. at 4.) These documents allegedly purported to represent a legitimate business transaction, in which Longo purchased the remaining half of the business, for $50,000, in return for Longo canceling the Promissory Note, valued at $65,000. After Williams was arrested, he recorded conversations with Longo. (Ex. C to Longo Omnibus Mot.)

During the investigation, the Government received information from Schweter. (Meinhardt Aff. at 5.) She advised the Government that the Promissory Note was backdated and that Longo and his attorney had questioned her about her testimony to the Grand Jury. (Id. at 5.) Schweter also gave the Government the file and directory names of both documents, which existed in her computer, and drew a schematic of Longo's office, indicating where her computer was located. (Id. at 6.)

A search warrant was issued by the Honorable Patricia A. Hemann, United States Magistrate Judge for the Northern District of Ohio. While executing the search, the Government agents confirmed that both the Promissory Note and the Purchase Agreement were stored in Schweter's computer. (Gov't Omnibus Resp. at 10.)

On September 19, 1997, Longo was indicted on charges of conspiracy with intent to distribute 100 kilograms or more of marijuana, attempt to possess with intent to distribute 100 kilograms or more of marijuana, conspiracy to travel interstate, and traveling interstate, and with the intent to carry on an unlawful activity through the use of a business enterprise involving the unlawful distribution of marijuana. Longo filed extensive Omnibus Motions before Judge Foschio. On February 26, 1999, Judge Foschio filed the Decision and Order and the Report and Recommendation, which denied most of Longo's requests. Longo now appeals Judge Foschio's recommendations and decision almost in their entirety.

DISCUSSION

I. STANDARDS OF REVIEW FOR A MAGISTRATE'S DECISION AND ORDER AND
  FOR A REPORT AND RECOMMENDATION

On February 4, 1999, this Court referred this case to Judge Foschio for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Pursuant to 28 U.S.C. § 636(b)(1), a magistrate's decision and order on a nondispositive issue should be reviewed by the district judge according to the clearly erroneous standard. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).

Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court judge may designate a magistrate judge to submit proposed findings of fact and recommendations for disposition on a defendant's motion in a criminal case. However, the parties have an opportunity to object to the magistrate judge's proposed findings. Upon the filing of timely objections, the district judge must conduct a de novo review of the magistrate judge's report and recommendation "upon the record, or after additional evidence," but only as to those portions of the report and recommendation to which the party objects. Fed.R.Civ.P. 72(b). See also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). The district court is not required to conduct a de novo hearing on the matter, but the court must arrive at its own independent conclusion about those portions of the magistrate's report and recommendation to which the objection is made. See East River Sav. Bank v. Secretary of Housing & Urban Development, 702 F. Supp. 448, 452 (S.D.N Y 1988). Following this determination: "a judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions." 28 U.S.C. § 636(b)(1)(C). Finally, although a de novo review requires the district court to independently consider and arrive at its own conclusions regarding the portions of the magistrate judge's report and recommendation that were objected to, the district court need not specifically articulate all of its reasons for rejecting a party's objections. See Murphy v. International Business Machines Corporation, 23 F.3d 719, 722 (2d Cir. 1994); Buffalo Central Terminal v. United States, 886 F. Supp. 1031, 1035-36 (W.D.N.Y. 1995) (citations omitted).

It is under these standards that this Court will evaluate Longo's appeal of Judge Foschio's Decision and Order and his objections to Judge Foschio's Report and Recommendation.

II. APPEAL OF THE DECISION AND ORDER

Of the nineteen motions included in Longo's Omnibus Motion, Longo now appeals eleven of them. After careful consideration of each motion, this Court agrees with Judge Foschio's reasoning and dismisses Longo's appeal of the Decision and Order.

A. Motion for Disclosure of Records Relating to Search at
  Longo's Law Office

By this motion, Longo requests a copy of all governmental records related to the search of his law office. (D & O at 5.) Judge Foschio dismissed the motion in part, recognizing that the Government had complied with Defendant's requests. (D & O at 5-6.) However, Judge Foschio ordered the Government to provide such materials, to the extent that they are Brady materials, to be disclosed no later than 30 days prior to trial. (D & O at 5.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

B. Motion to Produce Brady Material

By this motion, Longo seeks disclosure of impeaching material, including: various items relating to communications between himself and Lester Williams, a government informant; communication records of Longo; and various documents and records. (D & O at 7.) Judge Foschio dismissed this motion as moot due to the Government's willingness to comply. (D & O at 9.) Longo asserts that Brady materials are immediately discoverable, which would require production of such documents sooner than 30 days prior to trial. (Longo Reply Obj. at 3-4.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

C. Disclosure of Impairments in the Testimonial Capacity of
  Prosecution Witnesses

By this motion, Longo seeks the disclosure of the impairments of prosecution witnesses in the testimonial capacity, specifically in regard to Lester Williams. (D & O at 9.) Judge Foschio denied the motion because: the Government does not possess such records; such records are protected from disclosure, pursuant to 42 U.S.C. § 290dd-2; and Longo has not demonstrated that Williams was using drugs or alcohol at the time in question. (D & O at 10-12.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

D. Motion for Discovery of Specified Items

By this motion, Longo seeks tapes, transcripts, logs or recordings from the investigation of him and incarceration records of potential government witnesses. (D & O at 12-13.) Judge Foschio dismissed most of the motion as moot, once again recognizing the Government's willingness to comply. (D & O at 13-18.) Judge Foschio denied the remaining request for early disclosure of Jencks material. (D & O at 13-18.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

E. Request for Notice Pursuant to Fed. R.Crim.P. 12(d)(2)

By this motion, Longo requests an order requiring the Government to provide notice of any evidence arguably subject to suppression, including the statements of Government witnesses. (D & O at 18.) Judge Foschio denied Longo's motion because of Longo's mistaken reliance on United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998) and also because Longo has not met the burden of identifying evidence arguably subject to suppression and because the Government provided the requested information pursuant to voluntary discovery. (D & O at 19-21.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

F. Motion for Access to Sealed Court Documents

By this motion, Longo seeks the following sealed materials: (1) plea agreements involving Lester Williams and William Cope, potential government witnesses; (2) materials relating to the motion for adjournment of sentencing and preliminary hearings pending cooperation with the Government; (3) materials relating to the motion to temporarily relocate; and (4) affidavits concerning a potential conflict of interest between Longo's counsel and counsel for a cooperating witness. (D & O at 22.) Judge Foschio conducted an in camera review and dismissed the motion related to William Cope as moot, for he is deceased. (D & O at 23.) The Government has agreed to supply impeaching materials, therefore, this request is moot. (D & O at 23.) Alternatively, Longo has failed to demonstrate a basis for disclosure. (D & O at 23-32.) Finally, further sealing of the requested documents is necessary given the Government's interest in maintaining the cooperation of witnesses and effectiveness of ongoing investigations. (D & O at 23-32.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

G. Motion for Production of Statements of Persons Who are Not
  Prospective Government Witnesses

By this motion, Longo requests the disclosure of statements by persons who are not prospective government witnesses, including co-conspirators and unavailable witnesses (such as William Cope, who is now deceased), and seeks disclosure of the identity of all Government informers possessing information that may be material to Longo's alleged guilt or innocence. (D & O at 32.) Judge Foschio denied the motion concerning co-conspirator statements because neither the Jencks Act nor Fed.R.Crim.P. 16(a) authorize pretrial disclosure of statements from non-testifying witnesses. (D & O at 32-34.) Judge Foschio denied the motion concerning statements by unavailable witnesses because the Jencks Act only applies to those witnesses who have testified. (D & O at 34-35.) Should the Government obtain testimony from those witnesses who are unavailable to testify, the Government will be required to disclose the testimony, pursuant to the Jencks Act. (D & O at 35.) Judge Foschio denied Longo's motion for witness and informant identities because Longo failed to demonstrate that such information is material to his defense. (D & O at 35-41.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

H. Disclosure of Non-Privileged Grand Jury Information

By this motion, Longo requests various Grand Jury documents, documents relating to the authority of the Grand Jury, including any extension or impanelment orders and the date of the impanelment, and jury instructions. (D & O at 43.) Judge Foschio dismissed Longo's request for Grand Jury selection documents because the Government agreed and directed Longo to obtain the documents from the Clerk's Office. (D & O at 45.) Judge Foschio dismissed the request for the extension and impanelment orders, and the date of impanelment, because the Grand Jury impanelment date is on the indictment, but he found that the extension and impanelment orders are discoverable and the Government must release said items. (D & O at 46.) Meanwhile, Longo failed to identify governmental misconduct and, therefore, Judge Foschio denied release of Grand Jury instructions. (D & O at 47-49.) The motion requesting records of hearsay testimony, the circumstances under which the indictment was presented, and the names of persons who have learned confidential Grand Jury information was denied because Longo failed to demonstrate a particularized need. (D & O at 47-49.) Longo asserts that release of Grand Jury instructions is mandated when the accused is charged as a co-conspirator. (Longo Reply Obj. at. 10-11.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

I. Motion for a Bill of Particulars

By this motion, Longo requests particularization of the term "business enterprise," names of co-conspirators, time and place of all meetings that are alleged to further the conspiracy, and particularization of the charges against him. (D & O at 51.) Judge Foschio dismissed Longo's request that "business enterprise" be particularized, as the Government subsequently provided such information. (D & O at 51.) Request for the following items was granted: the basis of criminal liability; the names of any co-conspirators; those individuals described as "others" in the Indictment; and whether it is alleged that Longo had actual or constructive possession of the controlled substance. (D & O at 52-53.) Judge Foschio denied further particularization because Longo failed to demonstrate that it would aid in his defense. (D & O at 51-52.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

J. Motion to Preserve Evidence Access to Potential Witnesses

By this motion, Longo moved to suppress any evidence that may be discoverable at some future stage of the proceedings, as well as access to potential witnesses. (D & O at 53.) Judge Foschio dismissed the request to preserve evidence as moot based on the Government's willingness to comply. (D & O at 53-54.) Judge Foschio denied the request to preserve access to potential witnesses because Longo did not accuse the Government of concealing a witness or otherwise engaging in misconduct. (D & O at 54.) This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

K. Government's Motion to Disclose

By this motion, the Government sought reciprocal disclosure of all books, papers, documents, photographs, tangible objects, or copies or portions thereof which are in the custody and control of Longo. (D & O at 55.) Judge Foschio granted the motion for reciprocal discovery. (D & O at 55.) Longo objects to the Order because presently he does not know whether he will introduce any such evidence, as he does not have any in his possession, and consequently, cannot notify the Government. This Court finds that Judge Foschio's ruling was not clearly erroneous and, therefore, the decision is affirmed.

III. OBJECTIONS TO THE REPORT AND RECOMMENDATION

Judge Foschio's Report and Recommendation addresses Longo's motion to suppress evidence and/or to conduct evidentiary hearings, and to conduct a Franks hearing. Longo offered a multitude of grounds to justify the relief requested, including violations of the Fourth Amendment, the attorney-client privilege, the Sixth Amendment, Disciplinary Rule 7-104 of the Code of Responsibility, and the Fifth Amendment.

A. Fourth Amendment Issues

1. Probable Cause

Judge Foschio relied on numerous sources to conclude that the warrant was supported by probable cause. (R & R at 11-14.) Longo contends that portions of the Information, upon which Judge Foschio relied, were obtained pursuant to an illegal search conducted by Longo's legal secretary, Caroline Schweter. (Longo Obj. at 8-10, 14.)

2. Particularity of the Warrant

Judge Foschio recommended that suppression be denied because the warrant was sufficiently particular. (R & R at 14-20.) Longo asserts that the agents exceeded the scope of the warrant because an FBI report listed that a document titled TGL-002 was retrieved during the execution of the warrant, rather than TGL-003, which was included in the warrant. (Longo Obj. at 22.)

3. Good Faith Exception

Judge Foschio found that the agents did act in good faith, recommending that suppression be denied. (R & R at 22.) Longo contends that the agents did not act in good faith because FBI Special Agent Gummow passed information that he knew obtained from a warrantless search to another agent, FBI Special Agent Meinhardt, who incorporated such information in the affidavit supporting the search warrant application. (Longo Reply Obj. at 9-10.)

4. Franks Hearing

Judge Foschio concluded that a Franks hearing was not necessary to determine the truthfulness of Agent Meinhardt's Affidavit statements because Longo failed to make a preliminary showing that the Agent deliberately misled the court. (R & R at 20-25.) Longo argues that a Franks hearing is still required to assess these statements. (Longo Obj. at 15 n. 1; Longo Reply Obj. at 10 n. 2.) The Government contends that it is irrelevant whether Meinhardt misstated facts because there is enough other evidence to support probable cause without Meinhardt's statements.

5. Recorded Statements

Judge Foschio found that the recorded statements were consensual, applying United States v. Bonanno, 487 F.2d 654, 658 (2d Cir. 1973) ("It will normally suffice for the Government to show that the informer went ahead with the call after knowing what the law enforcement officers were about."). (R & R at 39-43.) Neither party objects to Judge Foschio's findings.

6. Longo's Warrantless Search Claim

Longo contends that his legal secretary, Caroline Schweter, acted as an agent of the Government and consequently, her actions amounted to a search, the effect of which was a violation of the Fourth Amendment. (Longo Obj. at 8-10, 18-20.) Judge Foschio recommended that suppression, and an evidentiary hearing to determine the extent of Schweter's conduct be denied because Caroline Schweter was not an agent of the Government. (R & R at 38.)

B. Attorney-Client Privilege

Judge Foschio recommended that the relief requested cannot be granted on the basis of a violation of attorney-client privilege because Longo waived the attorney-client privilege. (R & R at 46, 47 .) Longo claims that it is not possible to waive the privilege when communicating to a third party when that third party is an agent of the Government. (Longo Obj. at 27-33.)

C. Sixth Amendment Claims

Judge Foschio recommended that Longo was not entitled to the relief requested on this basis because Longo's Sixth Amendment rights were not violated. Longo claims that his rights were violated because the Government, acting through Caroline Schweter, interfered with Longo's right to counsel.

D. Disciplinary Rule 7-104 of the Code of Responsibility Claim

Judge Foschio recommended that suppression on this ground be denied because the Disciplinary Rule is not applicable. (R & R at 56.) The Disciplinary Rule prohibits an attorney from communicating with a represented party. (R & R at 52.) Longo contends that the Government contacted him via Ms. Schweter. Judge Foschio rejected this argument because Ms. Schweter was not acting on behalf of the Government and because the FBI and DEA agents that she had contact with are not attorneys and, therefore, the Disciplinary Rules are not applicable. (R & R at 53-54.) Longo reiterates his previous argument and contends that AUSA Kennedy knew of and acquiesced in Ms. Schweter's actions, and therefore, the Disciplinary Rule does apply. (Longo Obj. at 31-34.)

E. Fifth Amendment Claims

Judge Foschio recommended that dismissal of the Indictment be denied because due process has not been violated since Longo failed to demonstrate "outrageous conduct" and that an evidentiary hearing was not required on this issue. (R & R 57-59.) Longo contends that the Government used Ms. Schweter to eavesdrop upon privileged information and this warrants dismissal. (Longo Obj. at 31.)

F. Longo's Request for an Evidentiary Hearing

Judge Foschio denied Longo's request for an evidentiary hearing because Longo failed to demonstrate that such a hearing is warranted. (R & R at 57.) Longo asserts that absent such a hearing, Judge Foschio's recommendations are the product of a flawed legal process based on selective disclosure by the Government. (Longo Obj. at 24.) Longo contends that there are sufficient, definite, specific, and detailed facts, including those disclosed in the Government's own papers, that warrant holding a hearing. (Id. at 18-19.)

The Government agrees with Judge Foschio that Longo did not offer non-conjectural facts that entitled him to relief. (Gov't Resp.Obj. at 16.) In addition, the Government argues that because Longo is not ultimately entitled to the relief which he seeks, in that Judge Foschio recommended denial of suppression, Longo is not entitled to a hearing. (Id. at 18-19.)

IV. ORAL ARGUMENT

On June 23, 1999, this Court heard oral argument on Defendant Longo's appeal of the Decision and Order and his objections to the Report and Recommendation. This Court heard argument after conducting a thorough review of the voluminous record on these issues, including the submissions to this Court as well as the record before Judge Foschio. Based on this review, this Court determined that, rather than conduct argument on motion by motion, or an issue by issue, basis, it would be most constructive to examine the details of ...


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