United States District Court, S.D. New York
August 1, 2005.
United States of America
Steven Zoernack, Defendant.
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
Defendant, Steven Zoernack ("Zoernack"), moves to suppress all
evidence seized following a search of the premises located at 124
Sand Dollar Lane, Sarasota, Florida 34242 ("the Premises"),
pursuant to a search warrant issued by Magistrate Judge Mark A.
Pizzo of the Middle District of Florida. The Defendant also moves
to compel the Government to provide a bill of particulars. The
Government opposes both motions. The Court has considered
thoroughly all of the parties' submissions in connection with the
motions. For the following reasons, Defendant's motions to
suppress evidence and for a bill of particulars are denied.
Defendant is charged with fifteen counts of wire fraud in
violation of 18 U.S.C. section 1343. On July 17, 2003, Mr. Pankaj
Sharma, a Postal Inspector for the United States Postal Service,
executed an affidavit ("Affidavit") for a search warrant of the
Premises as explained in relevant detail below. The Affidavit
presented information obtained from various sources, including
complaining witnesses and documentary evidence, concerning
Defendant's alleged illegal activities, and asserted that the Premises were
likely to contain evidence of these activities. (Affidavit,
annexed to Mot. to Supp. as Ex. A.) Based on the Affidavit,
Magistrate Judge Pizzo issued a warrant on July 17, 2003,
authorizing a search of the Premises. (Search Warrant, annexed to
Mot. to Supp. as Ex. B.) The search, conducted on July 18, 2003,
resulted in seizure of numerous items, including business
records, computers, a computer disk, and written statements. (See
Search Warrant Inventory, annexed to Mot. to Supp. as Ex. C.)
Defendant, contending that the information proffered in the
Affidavit was stale, seeks to suppress all of the seized evidence
based on lack of probable cause for issuance of the search
warrant. (Mot. to Supp., dated May 10, 2005, at ¶ 11.) Defendant
also seeks a bill of particulars identifying the "`false and
fraudulent pretenses, representations, and promises' allegedly
made by Zoernack" in connection with the crimes charged in the
fifteen-count Indictment. (Mot. for Bill of Part., dated May 10,
2005, at 1.)
Motion to Suppress Evidence
It is well established that a magistrate shall issue a search
warrant only upon probable cause supported by an affidavit.
U.S. Const. Amend. IV; Illinois v. Gates, 462 U.S. 213, 238 (1983).
In determining probable cause, a magistrate "is simply to make a
practical commonsense decision whether, given all the
circumstances set forth in the affidavit before him, . . . there
is fair probability that contraband or evidence of a crime will
be found in a particular place." Gates, 462 at 238; United
States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) ("To
establish probable cause to search a residence, two factual
showings are necessary first, that a crime was committed and second, that there is probable cause to
believe that evidence of such a crime is located at the
residence."). In reviewing a probable cause determination, courts
give substantial deference to the magistrate's findings and limit
the inquiry to whether the magistrate had a substantial basis for
finding probable cause. United States v. Singh, 390 F.3d 168,
181 (2d Cir. 2004).
Here, the warrant issued to search the Premises was supported
by probable cause. Initially, the Affidavit proffers ample
evidence that Zoernack defrauded numerous victims. The Affidavit
provides detailed accounts of how Zoernack persuaded victims to
send him money in exchange for promises of mortgages they never
received. (Affidavit at ¶¶ 4, 8-14.) The Affidavit also presents
information indicating that Zoernack defrauded third-party
contractors by not paying them for services rendered. (Id. at
¶¶ 15-16.) Furthermore, the information presented in the
Affidavit is sufficient to support a determination of probable
cause to believe that the Premises were likely to contain
evidence of Zoernack's criminal activity. The Affidavit proffers
evidence that Zoernack lived at the Premises and had conducted
business from his residence over a lengthy period of time. (Id.
at ¶¶ 22-23.) Mail sent to Zoernack's company, "Wall Street
Credit LLC," a mortgage broker and conduit lender purportedly
located in New York City, was actually forwarded to the Premises.
(Id. at ¶ 24.) Wall Street Credit conducted business through an
internet site administered by Zoernack, and Zoernack, who
conducted his business from the Premises, communicated frequently
by email with his alleged victims. (Id. at ¶ 32.) These facts
are sufficient to support a reasonable inference that the
relevant business records pertaining to the fraud would be
located at the Premises.
Contrary to Defendant's claim, the information in the affidavit
was not stale. Defendant asserts "the information contained within the Affidavit
was over two (2) years old" and "there are absolutely no
allegations that any wire transfers or other allegedly criminal
activity occurred at any time after March 29, 2001." (Mot. to
Supp. at ¶¶ 6, 20.) This contention is factually incorrect. The
Affidavit describes one victim who allegedly mailed Zoernack
approximately $17,000 from December 2002 to February 2003.
(Affidavit ¶ 14.) This person also allegedly had a conversation
with Zoernack on July 16, 2003 repeating a request for a refund
(Id.) Additionally, the Affidavit proffered that the website
operated by Zoernack, "which directs viewers to contact Wall
Street Credit and Zoernack by sending electronic mail" was in
operation on July 16, 2003. (Id. at ¶ 32.)
However, even if the latest information in the Affidavit
concerning specific alleged instances of fraudulent activity had
been two years old, the warrant would not necessarily be invalid.
Defendant's focus on whether the information presented to the
Magistrate Judge was sufficient to support an inference of
ongoing criminal activity is misplaced. Rather, where the
validity of a search warrant is at issue, the question is whether
the information in the affidavit is sufficient to establish a
"fair probability" that evidence of criminal activity would be
found at a particular place. The age of the information is
relevant only in so far as it affects the likelihood that
evidence will be found at the premises. In this case, the nature
of the criminal enterprise (money transfers over a period of
years), together with the kind of evidence to be seized (records
pertaining to the fraudulent activity) and the nature of the
Premises (home used as primary residence and principal place of
business), support the conclusions that the items sought were of
the type that would be kept over a period of years and that there
was a fair probability that they could be found in the Premises.
See United States v. Singh, 390 F.3d 168, 181-183 (2d Cir. 2004) (Search warrant based on twenty month old information held
not stale because business records pertaining to defendant's long
standing fraud activity would be kept over a period of years, and
defendant was likely to keep records at his residence, so there
was fair probability that evidence of fraud could be found in his
Defendant further argues "there is absolutely no information in
this case from which the reviewing magistrate could determine the
veracity of the unidentified persons supplying the critical
hearsay information upon which the Affidavit is based." (Def.
Mot. to Supp. at ¶ 14.) It is true that a magistrate issuing a
warrant should consider "the `veracity' and `basis of knowledge'
of persons supplying hearsay information." Illinois v. Gates,
462 U.S. 213, 238 (1983). In this case, however, the requisite
indicia of the reliability of the statements were apparent on the
face of the Affidavit. The statements were attributed to either
alleged victims or witnesses and are therefore presumed reliable.
United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975);
United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990).
Additionally, these statements were corroborated by other
substantially similar statements as well as by external evidence.
For example, the victims' description of Zoernack as an agent of
Wall Street Credit was corroborated by the registration documents
of the company and the company's website. (See Affidavit ¶¶ 4,
25.) The alleged transfers detailed by the victims were
corroborated by the summary of bank records. (See Affidavit ¶
17.) Accordingly, there was sufficient information in the
Affidavit to enable the Magistrate Judge to make determinations
concerning the veracity of the unidentified persons supplying the
The information proffered in the Affidavit was neither stale
nor otherwise insufficient to support the Magistrate Judge's
determination that there was probable cause to authorize issuance
of the search warrant. Accordingly, Defendant's motion to
suppress the evidence seized in the search is denied.
Motion for Bill of Particulars
The purpose of a bill of particulars is to provide a defendant
"with information about the details of the charge against him if
this is necessary to the preparation of his defense, and to avoid
prejudicial surprise at the trial." United States v. Torres,
901 F.2d 205, 234 (2d Cir. 1990) (internal quotations omitted).
"A bill of particulars should be required only where the charges
in the indictment are so general that they do not advise the
defendant of the specific acts of which he is accused." Id.
(quoting United States v. Feola, 651 F.Supp. 1068, 1132
(S.D.N.Y. 1987)). A bill of particulars, however, "is not a
general investigative tool for the defense or a device to compel
pretrial disclosure of the government's evidence." United States
v. Ballesteros Gutierrez, 181 F.Supp.2d 350, 356 (S.D.N.Y.
2002). The Court has the discretion to deny a bill of particulars
"`if the information sought by defendant is provided in the
indictment or in some acceptable alternate form.'" United States
v. Barnes, 158 F.3d 662, 665-666 (2d Cir. 1998) (quoting United
States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (per
curiam)). "In exercising that discretion, the court must examine
the totality of the information available to the defendant
through the indictment, affirmations, and general pre-trial
discovery and determine whether, in light of the charges that
the defendant is required to answer, the filing of a bill of
particulars is warranted." United States v. Bin Laden,
92 F.Supp. 2d 225, 233 (S.D.N.Y. 2000).
Zoernach's request to "compel the Government to identify any
and all false and fraudulent statements" made as part of the
alleged criminal scheme (Mot. for Bill of Part. at 5) is beyond
the proper scope of a bill of particulars. In this case, the
Indictment provides specific information for each allegedly fraudulent transaction, including
the date, the amount in question, and the banks to and from which
the money was transferred. (Indictment at 2.) See United
States v. Mitlof, 165 F. Supp. 2d 558, 569-570 (S.D.N.Y. 2001)
(rejecting motion for bill of particulars in fraud case as
improper request for "`when,' `wheres,' and `with whoms'").
Additionally, the Affidavit in support of the search warrant,
details how Zoernack allegedly defrauded his victims, including
specific chronologies for particular victims. (Affidavit, ¶¶ 6,
8-20.) The Government also proffers that it has provided defense
with 7,000 pages of discovery related to Zoernack's fraudulent
scheme. (See Govt. Opp. at 11.) Together, these documents provide
sufficient information of the details of the charges to enable
Defendant and his counsel to prepare for trial and avoid unfair
For the foregoing reasons, Defendant's motions to suppress and
for a bill of particulars are denied.
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