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United States v. Sikut

March 8, 2007

UNITED STATES OF AMERICA
v.
CRAIG E. SIKUT, DEFENDANT.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

DECISION and ORDER REPORT RECOMMENDATION and UNITED STATES ATTORNEY

JURISDICTION

This case was referred to the undersigned by the Hon. Richard J. Arcara on October 17, 2006 for all pretrial matters (Doc. No. 23). The matter is presently before the court on Defendant's motion to suppress evidence and for non-dispositive relief (Doc. No. 14) ("Defendant's motion").*fn1

BACKGROUND

DefendantCraig E. Sikut ("Defendant" or "Sikut") was indicted in a three-count indictment on June 7, 2006 ("Indictment"), charging Defendant with knowingly and unlawfully possessing "identification documents that appeared to be identification documents issued by and under the authority of the United States," in violation of 18 U.S.C. § 1028(a)(6), Indictment at 1-2, ("Count I"); "knowingly and willfully" making a "materially false, fraudulent, and fictitious statement and representation," in violation of 18 U.S.C. § 1001(a)(2), at 2-3, ("Count II"); and "knowingly and unlawfully manufactur[ing] and possess[ing] badges, identification cards and other insignia, and colorable imitations thereof, which were of a design prescribed by the heads of" various government agencies, in violation of 18 U.S.C. § 701, Indictment at 3-4, ("Count III"). Defendant's motion was filed July 20, 2006 along with a memorandum of law in support ("Defendant's Memorandum") (Doc. No. 14) ("Defendant's Motion"). The Government filed its response and cross-motion for discovery on August 4, 2006. ("Government's Response") (Doc. No. 15). An evidentiary hearing on Defendant's motion to suppress was conducted August 24, 2006, and continued on September 1, 2006. Oral argument was deemed unnecessary.

Based on the following, Defendant's motion should be GRANTED in part, DENIED in part, and DISMISSED in part as moot.

FACTS*fn2

The charges in the Indictment arise from evidence obtained by local police during a warrantless entry, search and seizure conducted by the police at 429 Third Avenue, Williamsville, New York, a townhouse unit and the residence of Defendant's parents ("the Sikut apartment" or "the apartment"). At 3:52 p.m., on March 20, 2005, Town of Amherst police received a 911 telephone call from a "refused," i.e., anonymous or unidentified neighbor, who refused to identify herself, reporting "a domestic" at 429 Third Avenue. Gov't Exh. 1; Tr.I 15; Tr.II 334-36.*fn3,*fn4,*fn5 Specifically, the caller stated that noise in the Sikut apartment "sounds like a physical fight, you can hear people going at the walls, rumbling down the stairs, it's really aggravating." Gov't Exh. 1. At 3:54 p.m., the 911 dispatcher directed Amherst Police Officer Kevin Stephens ("Stephens"), then on routine patrol duty, to investigate the reported "domestic." Tr.II 334. In the radio communication, the dispatcher notified Stephens that Amherst Police had received a similar 911 phone call in January 2005 also from a refused neighbor who reported a domestic at the same location which report, upon investigation, "turned out not to be a domestic [sic] the elderly male fell in the kitchen." Gov't Exh. 1. Stephens testified that he did not know the family name of the residents at 429 Third Avenue when he arrived on the scene on March 20th, but acknowledged that he, Stephens, had investigated the reported domestic at 429 Third Avenue approximately four months earlier, as described in the dispatcher's communication to him on March 20, 2005. Tr.II 128. Specifically, Stephens responded to the dispatcher that he was familiar with the previous call and investigation regarding that call because he was present during the earlier investigation. Gov't Exh. 1. Stephens also testified that he had stated to the dispatcher that the elderly residents at the 429 Third Avenue address, who were the subjects of the refused neighbor's 911 call on March 20, "should be alright." Id.

Stephens was the first officer to arrive at the scene at 3:56 p.m. Def. Exh. 1 ("Amherst Police Complaint/Information"); Tr.II 334. Upon arrival, Stephens knocked on the front door of the Sikut apartment, rang the doorbell and announced himself as a police officer, thereby attempting, unsuccessfully, to make contact with the residents. Tr.II 117-18. Stephens continued in his effort to contact the residents inside the apartment until Amherst Police Officer Nicholas Scioli ("Scioli") arrived at the scene less than ten minutes later to assist Stephens. Tr.II 118, 225. Scioli and Stephens testified that they continued trying to contact the residents, and Stephens instructed the police dispatcher to call the residents on the phone and "tell them to answer the door." Tr.II 118; Gov't Exh. 1. The dispatcher, however, responded to the officers that he was unable to do so as the residents had an unlisted phone number. Gov't Exh. 1. According to Scioli, the officers could not see inside the apartment because the window shades were down. Tr.II 228-29. Scioli further stated that from outside, the officers detected no signs of activity within the apartment. Tr.II 228-29; Gov't Exh. 1.

At approximately 4 p.m., Mr. and Mrs. Sikut, Defendant's parents, left the residence by car on their way to church services and observed a police officer, presumably Stephens, sitting in a patrol car in front of the apartment. Tr.II 283-84, 286-88. As the officer was looking down when the Sikuts' auto passed by his vehicle, however he did not notice them leave the townhouse complex.*fn6 Tr.II 319.

Being unable to contact anyone within the apartment, Stephens spoke with a woman who resided in an adjoining apartment who did not give her name but admitted making the March 20, 2005, domestic 911 call. Tr.II 129. The neighbor, later identified as Marsha Vallon ("Vallon"), repeated to Stephens what she reportedly heard earlier within the Sikut apartment. Tr.II 129. Vallon also told Stephens that "an elderly couple . . . lives there with their daughter." Tr.II 129. However, Vallon could not confirm to Stephens that the family was then at home. Tr.II 136.

Before deciding whether to enter the apartment to check on the residents, Stephens requested the police dispatcher notify Amherst Police Lieutenant Stephen McGonagle ("McGonagle"), Stephens's and Scioli's supervisor, of the situation in order to obtain McGonagle's advice as to how the officers should proceed. Gov't Exh. 1; Tr. II 334. Stephens testified that, in such situations, it is customary for patrol officers to contact a supervisor to determine whether exigent circumstances to justify a forcible warrantless entry to provide possible assistance are present. Tr.I 8; Tr.II 129. At approximately 4:07 p.m., the dispatcher informed McGonagle of Stephens's request for assistance. Def. Exh. 1. McGonagle testified that he overheard the original transmission between the dispatcher and Stephens following Vallon's 911 call and that, like Stephens, he, McGonagle, was therefore aware "there had been a prior domestic [911] call which turned out to be the elderly gentleman falling" when he arrived at the Sikut apartment. Tr.I 16-18, 23-24. McGonagle recalled he arrived at the scene between 4:30 and 5:00 p.m., or approximately 30 to 45 minutes after Stephens's arrival at 3:56 p.m. Tr.I 22.

Upon his arrival, McGonagle attempted to enter the premises by trying to open the doors and windows. Tr.I 25. McGonagle estimated the officers spent approximately 15 minutes from the time McGonagle arrived until the time of the officers' initial entry of the apartment investigating the matter to determine its potential exigency. Tr.I 23. McGonagle also testified that the officers attempted unsuccessfully to locate a vehicle in the apartment's parking area that may belong to the residents of the apartment. Tr.II 23. Eventually, McGonagle, Stephens and Scioli entered the apartment through a patio door in the rear area of the apartment which McGonagle stated was unlocked, a fact disputed by Defendant's mother. Tr.I 26; Tr.II 289. Upon effecting entry, the officers repeatedly shouted "police" to announce their presence in the apartment. Tr.I 27.

Once inside, the officers found nothing on the first floor of the apartment to indicate that a physical struggle or domestic disturbance had taken place, so they proceeded to the second floor of the apartment. Tr.I 27; Tr. II 141-143. McGonagle and Scioli specifically testified that there was nothing suspicious or amiss on the first floor. Tr.I 27; Tr.II 231. Stephens echoed this assessment, stating he observed no signs of a physical disturbance, including violence, blood or weapons on the first floor. Tr.II 141. Nevertheless, the officers proceeded to inspect the second floor of the apartment and continued to shout "police" as they ascended the stairs to the second floor where, in one of the bedrooms, they observed a middle-aged male ("Sikut"), who "appeared to be sleeping." Tr.I 27-28.

Upon being awakened by the officers, Sikut, who displayed a somewhat confrontational attitude, identified himself as the son of the apartment's residents. Tr.II 147-48, 236-37, 275-78. At this point, the officers were no longer concerned for the welfare of the elderly couple because they had already checked each of the rooms on the apartment's second floor within minutes of encountering Sikut, as no injured persons were located in the bedrooms, and as Sikut had stated his parents were the residents of the apartment. Tr.I 35-36; Tr.II 147-48, 264. Scioli testified, candidly, that the officers did not have probable cause to believe that any crime had been committed, nor that the officers believed the elderly couple or their daughter had been victims of foul play by anyone, including Sikut. Tr.II 263-64. However, notwithstanding the absence of any indication that a resident had been harmed, the officers proceeded to investigate Sikut's identity and presence in the apartment because they were unsure whether he had permission to be in the apartment as the neighbor, Ms. Vallon, had not mentioned that a younger male resided there, only that the elderly couple resided at the apartment with their daughter. Tr.II 147-48.

According to Stephens, upon being awakened by the police, Sikut appeared agitated and nervous. Tr.II 147. After encountering Sikut, the officers did not inquire of Vallon if any other family members resided in, or visited, the apartment or if she was aware that the Sikuts had a son as well as a daughter, nor did they attempt to investigate with any neighbors whether Sikut was permitted to be at the apartment.

Tr.II 148; Tr.II 270-71. Scioli admitted that Sikut's confrontational attitude toward the officers upon being awakened by them contributed to their decision to further investigate Sikut's asserted identity and presence at that point. Tr.II 277.

While Sikut was still in the bed, the officers asked Sikut for identification, but Sikut was "uncooperative" and demanded the officers to leave. Tr.I 36. Nevertheless, after a short period of time, Sikut got out of bed and identified himself as Craig F. Sikut, born March 3, 1960. Tr.I 37-39. Sikut informed the officers that he lived in the apartment and that his parents, the elderly couple, were then not at home. Tr.I 39. In an attempt to corroborate this assertion, Sikut pointed the officers to a photograph of himself that was in the bedroom. Tr.II 268. However, the person in the photograph did not sufficiently resemble Sikut in the estimation of the officers. Tr.II 182. Despite this unsuccessful demonstration by Sikut of his identity, after five to seven minutes, the officers ordered Sikut downstairs to produce other identification. Tr.I 41. According to McGonagle, the officers directed Sikut downstairs because the bedroom was too confined an area to permit a safe continuation of their investigation, and the officers were uncertain whether any weapons could be accessible to Sikut within the bedroom. Tr.I 41. At this point, the police had not observed or searched either Sikut's briefcase or computer bag.

Upon being escorted to the apartment's first floor downstairs, Sikut, who had, at some point, also claimed he was a federal agent, produced, at the officers' request, a business card purportedly from an unidentified federal agency. Tr.I 42. However, the business card identified Defendant as Craig E. Sikut, not Craig F. Sikut, the middle initial Sikut had previously given to the officers while they were in the bedroom. Tr.I 43. In response to the officers' questioning about the apparent discrepancy in his middle initials, Sikut responded that the middle initial on his business card was a printing error. Tr.I 43. Sikut did not provide a driver's license,*fn7 badge or any other official identification as a federal employee. Tr.I 43. Because the officers considered the business card insufficient evidence of Sikut's identity, Tr.I 42-43, McGonagle ordered Stephens to leave the apartment in order to conduct a radio check for any possible outstanding criminal warrants against Sikut. Tr.I 44.*fn8

Meanwhile, Sikut continued to demand that the officers leave the residence, but McGonagle informed Sikut that Scioli and McGonagle would wait in the front hallway of the apartment, and the two officers would depart "if everything checked out." Tr.I 48.

According to McGonagle, at that point the officers were attempting to verify Sikut's correct identity because the elderly couple residents were not present, had not returned to the apartment, and they "wanted to make sure that [Sikut] belonged in the house . . . [because the police] . . .[m]ight have had a burglary or an assailant or just somebody that didn't belong there for whatever reason [sic]." Tr.I 45 (Bracketed material added). McGonagle further explained that this advice to Sikut meant that the officers would leave once Sikut's identification and employment were verified, and it was established that he belonged in the house. Tr.I 48.

While Stephens was at the squad car conducting the warrant check by police radio, McGonagle directed Scioli to stand with his foot in the doorway of the apartment, thereby keeping the outside apartment door ajar in order to maintain his position should the officers need to reenter the apartment. Tr.I 48. As McGonagle walked toward the police car "to check on Officer Stephens' [sic] progress [in completing the warrant check]" Tr.I 48, Sikut began to push Scioli out of the apartment doorway and attempted to close the door on Scioli's foot. Tr.I 48. Observing this altercation, McGonagle came to Scioli's assistance. Tr.I 48. Both officers then pushed the apartment front door open, reentered the apartment, and instructed Sikut to sit down on a chair or sofa in the living room. Tr.I 49. Stephens testified that the officers' purpose for reentering the house at that point was to prevent injury to Scioli's foot and arrest Sikut for harassment of a police officer, a violation under New York law; however, according to Stephens, only Scioli could have lawfully arrested Sikut on such a charge under New York law because it was Scioli who had witnessed the harassment. Tr.II 196, 199-200. Nevertheless, Scioli did not intend to arrest Sikut for harassing him immediately upon Scioli's reentry into the apartment. Tr.II 253.

After Scioli and McGonagle reentered the apartment, Stephens's warrant check confirmed the existence of two outstanding warrants for Sikut from the Town Court of Hamburg, New York, another local township, for trespass and harassment, respectively, a violation and a misdemeanor under New York law.*fn9 Tr.I 50-51; Tr.II 246; Exh. 1. The warrant check also confirmed that a male named Craig E. Sikut resided at 429 Third Avenue, Amherst, New York, however, the date of birth and middle initial, F., Sikut provided to the officers differed from those which appeared on the warrants.*fn10 Tr.II 155. Once inside the apartment, Stephens asked Sikut for his correct name, to which Sikut responded by reaching for a laminated business card attached to a briefcase near the couch where Sikut was seated, Tr.I 55-56, on which was printed the name Craig E. Sikut. Tr.II 156. The officers inspected the business card but, for reasons of officer safety, Sikut was prevented from handling the card or the briefcase. Tr.I 57. When Stephens informed Sikut that Craig E. Sikut was the name on an outstanding warrant, Sikut stated that the name on the card was also a misprint. Tr.II 156. Although McGonagle could not recall exactly when, at some point while the officers were in the apartment, Sikut stated that he was not currently a law enforcement officer or federal agent but had previously been such an officer or agent. Tr.I 72. Sikut, who resisted the officers' attempt to arrest him resulting in the officers' wrestling Sikut to the floor and forcibly handcuffing him, was then arrested on the outstanding local warrants and for state charges of false personation, harassment of a police officer, and resisting arrest. Tr.I 61; Tr.II 160-61, 171.

After Sikut was placed in Scioli's patrol car, Tr.II 161, Stephens reentered the house to verify that no weapons were in Sikut's briefcase, and "to see if[Sikut] really did have identification in[the briefcase]." Tr.II 161. At that point, according to Stephens, the briefcase was already lying open before Stephens inspected it and Stephens observed what appeared to be a federal identification badge on top of other material inside the briefcase. Tr.II 162. As Stephens removed the badge, Stephens also observed six or seven more documents which also appeared to be federal identification documents associating Sikut with various federal agencies. Tr.II 162, 168. Stephens suspected that the identification documents were fraudulent and informed McGonagle what he discovered. Tr.II 169. McGonagle then contacted his supervisor and requested the number for the local field office of the Federal Bureau of Investigation ("FBI"). Tr.II 169. McGonagle spent approximately 20 minutes on the phone with an FBI officer, during which time Scioli remained in the patrol car with Sikut. Tr.II 169, 170. At McGonagle's instruction, Stephens then reentered the townhouse to retrieve Sikut's computer bag and computer.*fn11*fn12 Tr.II 170-71. According to Stephens, these items were seized from the apartment because the officers suspected the identification badges were forged documents, and that the computer they had observed in the apartment, on which was what appeared to be the official White House seal, was property of the federal government stolen from a federal agency. Tr.II 173-75. It is undisputed that except for Sikut's arrest on the outstanding local court warrants, the officers' actions were taken without a warrant. Mrs. Sikut testified regarding a forced entry of the apartment and that the family may have observed either Stephens or Scioli sitting in a police car in front of the apartment as they drove away to attend church services. Tr.II 284, 286-288. Sikut did not testify.*fn13

DISCUSSION

I. Motion for a Bill of Particulars

Defendant requests, pursuant to Fed.R.Crim.P. 7(f) ("Rule 7(f)"), a bill of particulars seeking details as to the alleged violations under the Indictment. Defendant's Motion ¶ 2. Specifically, Sikut seeks particularization of the specific dates, locations and circumstances when and where he allegedly misrepresented himself as a United States official after October 4, 1996. Defendant's Motion ¶ 6; (Indictment Count II). Additionally, Sikut requests particulars regarding the specific dates between July 2001 and March 20, 2005 on which it is alleged that Sikut engaged in the knowing, unlawful manufacture and possession of "badges, identification cards, and other insignia." Id.;(Indictment Count III).*fn14

Under Fed.R.Crim.P. 7(f), a court may direct the filing of a bill of particulars as justice requires. The decision as to whether to direct further particularization is within the discretion of the court. United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). The test as to whether to order particularization is "whether the information sought is necessary, not whether it is useful." United States v. Matos-Peralata, 691 F.Supp. 780, 791 (S.D.N.Y. 1988), aff'd sub nom., United States v. Benitez, 920 F.2d 1080 (2d Cir. 1990). The court will not order particularization where the government has provided the information requested either "in the indictment or some acceptable alternative form." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987); United States v. Feola, 651 F.Supp. 1068, 1133 (S.D.N.Y. 1987) (whether the information sought has been provided elsewhere, such as in other items provided by discovery, responses made to unobjected requests for particulars, prior proceedings, and the indictment itself, may be considered in deciding whether to order particularization), aff'd, 875 F.2d 857 (2d Cir. 1989), cert. denied sub nom., Marin v. United States, 493 U.S. 834 (1989). A bill of particulars should only be required "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." Feola, supra, at 1132. Further, "[a]cquisition of evidentiary detail is not the function of the bill of particulars." ...


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