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July 7, 2003


The opinion of the court was delivered by: Lewis Kaplan, District Judge


Defendant Russell A. Harding, former president of the New York City Housing Development Corporation ("HDC"), is charged with one conspiracy count and three substantive counts relating to a fraud scheme carried out against HDC in violation of 18 U.S.C. § 371, 666, 1341 and 1343 and with two counts relating to his alleged possession and receipt of child pornography in violation of 18 U.S.C. § 2252A. The images that underlie the pornography counts, as well as various items of evidence relating to the fraud counts, were seized pursuant to a search warrant. Harding now moves this Court (1) to suppress the evidence seized pursuant to the warrant or in the alternative, (2) for a Franks hearing to ascertain whether the government knew or should have known that the confidential source upon whom the government relied, in part, in seeking the warrant was unreliable, (3) to require the use of a questionnaire during voir dire, and (4) to compel the government to provide him with a list of known co-conspirators and all documents obtained from the confidential source that were in the government's possession before applying for the search warrant.

I The Motion to Suppress

A. The Investigation and the Warrant Application

In March 2002, the New York City Department of Investigation ("DOI") began an investigation into the conduct of Harding and Luke Cusack, who previously had been the senior vice president for administration of HDC. In its initial stages, the investigation focused solely on allegations that Harding and Cusack had embezzled money and equipment by, inter alia, charging personal expenses to an HDC Diners Club credit card for themselves and others. The United States Customs Service became involved after allegations were made that Harding had been involved with child pornography.

On May 2, 2002, a Customs Agent submitted to Magistrate Judge Kevin Nathaniel Fox an affidavit in support of warrants to search the apartments where Harding and Cusack resided. The affidavit was based in substantial part on discussions the agent had with DOI investigators and his review of documents obtained from HDC and Diners Club. It related that the DOI investigators had imparted to the agent information obtained by them from witnesses, including a person identified in the affidavit as a confidential source who now is known to have been Fred Sawyers.*fn1

1. The Allegations of the Affidavit Regarding Fraud

The affidavit, in brief summary, related that HDC had received allegations that Harding had charged to an HDC Diners Club card and otherwise imposed on HDC the cost of various personal expenses, including computers, software, and electronics equipment;*fn2 that Diners Club bills and other records reflected what appeared to be lavish personal spending on travel and meals; that Harding, upon HDC's receipt of a Freedom of Information Law ("FOIL") request for documents relating to his travel and expenses submissions, instructed his secretary to stop keeping such information on her computer and to begin shredding documents relating thereto; that a witness whose air travel had been charged by Harding to HDC, ostensibly on the ground that the individual had traveled on City Hall business, had informed investigators that he is a personal friend of Harding and that the trip was a purely personal one at Harding's invitation; that Harding had obtained additional compensation that was not approved by HDC's board of directors by means of an unauthorized override of Harding's salary figure in HDC's computerized payroll system; and that, shortly before he resigned, Harding had caused checks for $8,597 and $128,000 to be issued to himself without authority.*fn3

The affidavit then went on to describe an interview or interviews of Sawyers by DOI representatives. It stated that Sawyers had said that he had "met" Harding in an Internet "chatroom" in 1998 and maintained an electronic correspondence through September 2001. During that period, Harding sent him gifts of electronic equipment. On at least one occasion, Harding informed Sawyers, electronically, that he "can put both [i.e., the cost of two pieces of electronic equipment sent to Sawyers] on an expense report at work i do it all the time with shit like that . . . just one of the perks of being president." Sawyers reportedly provided investigators with what purported to be a copy of that communication. The agent then stated that he had reviewed the printout of the communication as well as shipping documents reportedly obtained from Sawyers, which indicated that the purchaser of the equipment was RA Harding of 175 East 62nd Street, New York, New York, the address of defendant's apartment.*fn4 He went on to detail additional statements by Sawyers to DOI personnel regarding communications with Harding concerning a trip by Harding on which Harding used male escorts and Harding's charging of personal expenses to HDC.*fn5

Finally, the affidavit related that Harding, after he left HDC, became aware of a renewed FOIL request to HDC, whereupon he repaid to HDC certain personal expenses that he had caused the agency to bear and issued a public statement admitting that he had charged personal expenses to HDC and was prepared to repay them.*fn6

2. The Allegations of the Affidavit Regarding Child Pornography
The section of the agent's affidavit detailing Harding's alleged involvement in child pornography began with background information concerning the use of computers and the Internet with child pornography.*fn7 It then turned to information obtained from Sawyers.

According to the affidavit, Sawyers told the DOI investigators that Sawyers had spoken to Harding by telephone on eight to ten occasions and that Harding had used various "screen names," as well as the name "Russ," during their electronic communications. America Online confirmed that Harding was a subscriber and that the screen names given by Sawyers previously were listed for Harding's account. Further, Sawyers told investigators that Harding had sent him photographic images of himself in e-mail messages and provided those images to the DOI, which compared them with published photographs of Harding and confirmed that they were of the same person. Sawyers, according to the affidavit, provided investigators with copies of envelopes and mailing labels, which bore Harding's home address, from packages that he had received from Harding. Moreover, he described trips, events and activities that Harding described to him in their electronic correspondence. DOI investigators then found such activities documented in expense reports and other documents obtained from HDC. Based on these circumstances, the agent submitted that there was probable cause to believe that Sawyers' electronic correspondent in fact was Harding.*fn8

The agent then went on to report that he had reviewed printed copies of e-mail communications that Sawyers provided to DOI investigators.*fn9 At least one, the agent said, included a transmission by Sawyers' correspondent of an image of a nude prepubescent boy. The correspondent described himself in others as a "pedophile" interested in engaging in sexual activities with young boys and offered to transmit child pornography to Sawyers. The agent then quoted a number of these e-mails. He reported that Sawyers had told DOI investigators that Harding had sent him an additional three to five images of child pornography during the 2000-01 period and described at least three images in terms the agent summarized.*fn10

Although the agent did not so characterize it, the affidavit focused on the question whether there was probable cause to believe that evidence of crimes involving child pornography would be found in Harding's apartment. The agent noted that he had reviewed a sexually explicit exchange that occurred on May 17, 2001 at about 6:31 p.m. in which the correspondent described what his dog was doing, which suggested to the agent that the correspondent was communicating with Sawyers from his home.*fn11 Furthermore, the agent took note of the dates and times of all the Internet communications between Sawyers and the correspondent that he summarized, all of which took place during evening hours or on weekends.*fn12 He noted also that HDC documents indicated that Harding had used HDC funds to acquire desktop and laptop computers, Quicken software, as well as other computers and computer-related equipment.*fn13 Time Warner Cable had confirmed to the agent that Harding subscribed to Internet service at his apartment, and AOL records demonstrated that an individual using Harding's account had accessed the Internet on May 1, 2002.*fn14 The agent went on to say, based on his experience in investigating child pornography cases, that collectors of such material typically store them in private secure locations such as their homes and keep them for long periods.*fn15

3. The Warrant and its Execution

Magistrate Judge Fox issued the warrant on the evening of May 2, 2002.*fn16 It authorized, inter alia, a search of Harding's apartment for a broad variety of documents and electronic media as well as for the computers and other electronic equipment and related materials that Harding allegedly had purchased with HDC funds.*fn17

The warrant was executed on May 3, 2002. Agents found a number of items of computer and electronics equipment and related materials that were described in the search warrant, computerized financial records reflecting meals and other purchases of a personal nature for which Harding obtained reimbursement from HDC and, importantly for present purposes, a zip diskette containing still images and a movie file of alleged child pornography.*fn18

B. Suppression

Harding seeks to suppress the evidence obtained pursuant to the warrant on the grounds that (1) the portion of the affidavit relating to the fraud offenses failed to provide a sufficient nexus between Harding's alleged fraud and his apartment — in other words, that it failed to demonstrate probable cause to believe that evidence of the fraud would be found in that location, and (2) probable cause did not exist to search the apartment for evidence of child pornography.*fn19

1. Probable Cause to Search Harding's Apartment for Evidence of Fraud
"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place."*fn20
Probable cause exists if the totality of the circumstances justifies "a person of reasonable caution in believing" that which is sought to be established.*fn21

The affidavit plainly demonstrated the existence of probable cause to believe that Harding incurred expenses for things such as personal meals, personal travel, and gifts to acquaintances. In some cases, he charged these to an HDC corporate Diners Club card which HDC then paid, and in others he sought reimbursement for expenses he first paid himself. Indeed, Harding concedes that the affidavit "supplied a wealth of probable cause that [Harding] had, in many instances, wrongfully expended funds of" HDC.*fn22

As far as the nexus between the crimes and the presence of evidence in Harding's apartment is concerned, the affidavit stated that HDC documents reviewed by DOI investigators indicated that some of the computers and computer-related equipment purchased by Harding with HDC money "was intended for Harding's use at" his residence.*fn23 Among the computer-related materials allegedly paid for by HDC was Quicken software, which frequently is used to maintain personal financial records.*fn24 Moreover, "magistrates can make use of their background of experience to determine whether probable cause exists."*fn25 It is common knowledge that people frequently keep their personal financial records, photographs of personal travel, personal computers and related materials, personal correspondence, and date books or calendars in their homes.

Harding nevertheless argues that finding probable cause to believe that evidence of the fraud was in his apartment would be "the equivalent of issuing a general warrant — `authorizing searches of any property owned, rented or otherwise used by a criminal suspect,'" at least in financial fraud cases.*fn26 To be sure, special care must be taken with respect to the issuance of warrants to search personal residences. But Harding's argument both implicitly overstates the extent of the protection afforded by the Fourth Amendment and understates the strength of the showing made to Judge Fox.

The probable cause inquiry "focuses on the relation of criminal conduct to a particular location and not on the activities of any particular person."*fn27 But there is no need for "direct evidence linking the residence to criminal activity . . . to establish probable cause. . . . Instead, probable cause to search can be based on an accumulation of circumstantial evidence that together indicates a fair probability of the presence of contraband [or evidence] at the home of the" subject of an investigation.*fn28

The evidence before Judge Fox afforded ample basis for concluding that there was a fair probability that materials described in the warrant would be found in Harding's apartment. As Harding concedes, there was plenty of evidence indicating that Harding had HDC foot the bill for personal expenses, including travel and personal meals, and that he had taken computers and computer-related materials paid for by HDC for use at his residence. The computer-related materials paid for by HDC included software that can be used to maintain personal financial records. In these circumstances, there was every reason to believe that a search of his residence would turn up documentation of personal expenses and reimbursement therefor, date books and photographs confirming the travel and meals and probably their personal nature, and similar evidence, not to mention the computers and computer-related equipment. In any ...

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