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United States v. Graziano

March 20, 2008

UNITED STATES OF AMERICA,
v.
CARMINE GRAZIANO, DEFENDANT.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

The Indictment charges the defendant, Carmine Graziano, with crimes related to an arson of Roseanne's Cards Galore ("Roseanne's") in New Hyde Park, New York on August 11, 2003. In connection with that Indictment, the government alleges that Graziano ordered the August 11, 2003 fire at Roseanne's because of a several year dispute between the owners of Roseanne's and the defendant, who owned a tavern named "Copperfield's" located next door to Roseanne's. The government further contends that the arson was in retaliation for complaints by the owners of Roseanne's, Joseph and Anna Graham (hereinafter, the "Grahams") to local law enforcement, as well as municipal and state regulatory authorities, regarding late night noise, violence, and underage drinking at Copperfield's.

Defendant moved, pursuant to Rules 404(b) and 403 of the Federal Rules of Evidence, for the suppression of the fruits of the search of defendant's home and computer. The government moved, in limine, to introduce evidence, in its case-in-chief, of the following prior bad acts of the defendant: (1) a series of prior interactions between the defendant and the owners of Roseanne's, including threats which the defendant allegedly made to the owners; (2) the defendant's unsuccessful attempt to have the owners assaulted; and (3) illegal gambling inside the defendant's bar. Defendant argues that the evidence should be excluded under Rules 404(b) and 403. In addition, the Government moved in limine (1) to preclude any examination or testimony regarding the defendant's offer to take a polygraph examination; and (2) to preclude any examination or testimony regarding the term of imprisonment associated with Title 18, United States Code, Section 924(c)(1)(b)(ii), which is the charge contained in Count Three of the Indictment.

The Court ruled on these motions orally and stated that this more detailed written opinion would follow.*fn1 For the reasons set forth below and orally on the record in Court, (1) the defendant's motion to suppress is denied; (2) the government's motion in limine to admit certain evidence is (a) granted as to the evidence regarding the prior interactions between defendant and the owners of Roseanne's (including the alleged threats), as well as the alleged unsuccessful attempt to have the owners of Roseanne's assaulted; and (b) denied as to the illegal gambling evidence; and (3) the government's motion in limine to preclude evidence regarding defendants's offer to take a polygraph and any reference by defense counsel during the trial regarding the penalties for Count Three is granted.

A. Search of Graziano's Home

The defendant moved to suppress the evidence seized from his home in its entirety because the search was an unlawful "general search" conducted in flagrant disregard of the search warrant. The Court disagrees and finds that there is no basis to suppress the seized evidence as part of an unlawful general search, or on any other grounds.

1. The Facts*fn2

On July 13, 2004, law enforcement agents conducted a search at defendant's house in Oceanside, New York, pursuant to a warrant issued earlier that evening by Judge Donald E. Belli of the Nassau County Court. The warrant authorized the agents to search for, and seize, gambling records and/or other paraphernalia used in illegal gambling activities, including records electronically stored in computers. Specifically, the warrant allowed seizure of the following:

records of bets, accounts and transactions, including betting slips, made in the course of illegal bookmaking activity, whether written or electronically recorded on paper or in a computer or computer program; adding machines , calculators, computers and other equipment used and possessed for use in recording and tabulating bets, wagers, odds, commissi o ns , loss es , winnings, collections and disbursements involved in the course of illegal bookmaking activity, FAX machines, address books and notations of telephone numbers, tape recorders, answering machines and tapes or discs; safes, United States currency and other proceeds of illegal gambling activity, financial records, including but not limited to documents relating to deposits or withdrawals of sums of money from savings and checking accounts, telephones, wireless telephones and pagers, including the information electronically stored therein, any property or record which tends to identify a particular person as having control or access to a particular premises or location, keys to safe deposit boxes, all said property used and possessed for use in furthering illegal gambling activity, and for any of the above-listed property or evidence contained in closed containers . . . .

(Weiss Aff., Exh. A.) The basement of the house contained an office area with a desk, computer, fax machine, business telephone and file cabinets. During the search, an alleged betting slip was recovered from this basement area, as well as the computer and fax machine. (Joann Graziano Aff. ¶ 6.) The officers also searched the remainder of the house for approximately three hours - including the bedrooms, bathroom, kitchen, and laundry room - for other items within the scope of the warrant. (Id. ¶ 7.) A gambling record also was found on a dining room table. (Weiss Aff. ¶ 4 n.1.) During that search, the agents also found an antique pistol, two stun guns, and two switchblade knives in a bedroom closet and seized those items. (Joann Graziano Aff. ¶ 8; Weiss Aff. ¶ 7.)

2. Analysis

Under well-settled Second Circuit case authority, "[g]overnment agents `flagrantly disregard' the terms of a warrant so that wholesale suppression is required only when (1) they effect a `widespread seizure of items that were not within the scope of the warrant,' . . . and (2) do not act in good faith." United States v. Liu, 239 F.3d 138, 140 (2d Cir. 2000) (quoting United States v. Matias, 836 F.2d 744, 748 (2d Cir. 1988)) (citations omitted). As the Second Circuit has noted, "[t]he rationale for blanket suppression is that a search that greatly exceeds the bounds of a warrant and is not conducted in good faith is essentially indistinguishable from a general search." Liu, 239 F.3d at 141 . Therefore "to satisfy the first prong of the two-part test described above, the search conducted by government agents must actually resemble a general search." Id. Thus, "the extreme remedy of blanket suppression should only be imposed in the most extraordinary of cases." United States v. Foster, 100 F.3d 846, 852 (10th Cir. 1996) (internal quotation marks omitted).

In support of his argument, Graziano contends that the searchers acted in flagrant disregard of the warrant because they did not limit themselves to the basement of the house, which contained an office area, but rather searched all of the rooms in the entire house for such records over a three-hour period. The Court finds this argument unpersuasive. It is clear from the warrant that the searchers were permitted to go into every room. The reason for the scope of the warrant is clear - gambling records can easily be hidden in any area of a residence by the occupant of that residence. When looking for such records, law enforcement is not required to limit itself only to areas, such as desks or filing cabinets, where documents for non-criminal purposes are generally stored. It would defy logic to conclude that criminals would limit themselves to such customary storage containers, rather than attempting to conceal records of criminal activity in other more obscure places. See United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990) ("[T]he Fourth Amendment is not violated because the officers executing the warrant must exercise some minimal judgment as to whether a particular document falls within the described category.").

The Supreme Court has stated that "[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search." United States v. Ross, 456 U.S. 798, 820-21 (1982). Thus, when authorized by the warrant, courts have repeatedly upheld the ability of law enforcement officers to search an entire home for items within the scope of the warrant. For example, in United States v. Canestri, 518 F.2d 269, 273 (2d Cir. 1975), the Second Circuit rejected an argument that the police had exceeded the scope of a search warrant and upheld the search of a storeroom where the warrant permitted a search of the entire house. Specifically, the Second Circuit explained:

The warrant directed that the entire house be searched. As the district court noted, to exclude the storeroom from the scope of the warrant "on the facts of this case, would be to suggest that the purposes of a search warrant could be frustrated by the mere declaration of the owner of a one-family residence that one of the rooms therein `belongs' to a party not named in the warrant. . . . Such a result would clearly be inappropriate.

Id. at 273 (citation omitted). Similarly, in United States v. Ayers, 924 F.2d 1468 (9th Cir. 1991), the Ninth Circuit held that "[a] search warrant for the entire premises of a single family residence is valid, notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of a residence." Id. at 1480 (citations omitted); see also United States v. Waters, 786 F. Supp. 1111, 1119 (N.D.N.Y. 1992) (finding that agent "was justified in believing that defendant had control of the entire premises such that the subject of the search warrant could be located anywhere in the residence, outbuildings, or appurtenances thereto, and [the agent] had probable cause to search the entire premises"); United States v. Maher, No. 94 Cr. 606 (LLS), 1995 WL 258194, at *3 (S.D.N.Y. May 2, 1995) ("Because the warrant authorized a search of the entire residence and seizure of documents identifying co-conspirators, the seizure of [defendant's] diaries and appointment books, regardless of their location or purported personal nature, was justified."). Thus, the search of all the rooms in Graziano's home for gambling records over the three-hour period was completely consistent with the warrant and does not provide any basis for concluding that the officers conducted a general search.

Defendant's second assertion - namely, that officers exceeded the scope of the warrant by seizing the pistol, stun guns, and knives in the bedroom - is equally unavailing. The Supreme Court has held that "[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587 (1980). "Under [the plain view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if officers have a lawful right of access to the object, they may seize it without a warrant." Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). In the instant case, as noted above, the officers were permitted to search the closet for gambling records that could be seized pursuant to the warrant and, when they observed these weapons in plain view during such search, the officers were authorized to seize them. In particular, in New York State, possession of certain weapons - including pistols, switchblade knives, and electronic stun guns - is a crime. See N.Y. Penal Law § 265.01. There are exceptions to this law, including for possession of pistols for those who possess a valid license for that particular weapon (N.Y. Penal Law § 400.00(7)), as well as for possession of switchblades for those who have a valid hunting license (N.Y. Penal Law § 265.20(a)(6)). Although defendant argues that the seizure was improper because there was no indication to the police that the weapons were illegally possessed, the Court rejects that contention under the circumstances of this case and finds that the police officers were allowed to seize such weapons prior to determining whether they were illegally possessed.

First, the police had no reason to believe that defendant's possession of an electronic stun gun fell within the narrow exceptions (such as for use by law enforcement) to the New York laws which criminalize such possession and its incriminating nature was immediately apparent. See, e.g., United States v. Cruz, 314 F. Supp. 2d 321, 332 (S.D.N.Y. 2004) (holding seizure of stun gun in plain view was proper under Fourth Amendment). Similarly, there was probable cause to believe that these other weapons in plain view were associated with criminal activity, despite the fact that there was the possibility that defendant had a license for the gun and switchblades, especially when the stun guns were in close proximity with other weapons. See, e.g., United States v. Rudaj, 390 F. Supp. 2d 395, 402 (S.D.N.Y. 2005) (holding seizure of two guns in plain view in bedroom during protective sweep was permissible); United States v. Corcoran, 855 F. Supp. 1359, 1367 (E.D.N.Y. 1994) (holding knife found on dresser table in plain view was properly seized); United States v. Gotti, 42 F. Supp. 2d 252, 275-76 (S.D.N.Y. 1999) (holding seizure of guns in plain view during search for business records and currency was proper under Fourth Amendment); see also United States v. Wolfe, 22 F. Supp. 2d 627, 643-44 (E.D. Mich. 1998) (rejecting argument that police could not seize firearms in plain view because officers allegedly knew defendant was a federally licensed firearms dealer and could not determine at the time of search if weapons were illegally possessed). As the Eighth Circuit has noted, "[p]robable cause demands not that an officer be `sure' or `certain' but only that the facts available to a reasonably cautious man would warrant a belief `that certain items may be contraband or stolen property or useful as evidence of a crime.'" United States v. Garner, 907 F.2d 60, 62 (8th Cir. 1990) (quoting Texas v. Brown, 460 U.S 730, 742 (1983)). Here, the Court finds that all three requirements of the plain view doctrine were met.

Moreover, the police officers were allowed to seize such weapons in plain view in the instant case because of their inherently dangerous nature, even before they established whether such weapons were illegally possessed. See, e.g., United States v. Atchley, 474 F.3d 840, 850 (6th Cir. 2007) ("[Defendant] argues that the seizure of the handgun was impermissible because there was nothing readily apparent that established its illegality. This argument fails, for even if a loaded handgun is legally possessed, because of its inherently dangerous nature, police may seize it if there are articulable facts demonstrating that it poses a danger."). In short, the Court concludes that the law enforcement officers were authorized to seize these weapons under the circumstances of this case and no Fourth Amendment violation occurred.*fn3

In any event, even assuming arguendo that the officers exceeded the bounds of the warrant when they seized the weapons, defendant has failed to show that their search resembled a general search. In other words, after carefully considering the defendant's undisputed version of the facts concerning the scope and duration of the search (as well as the computer search described infra), the Court concludes that the first prong of the two-part test for "flagrantly disregarding the terms of the warrant," as articulated by the Second Circuit in Liu, has not been met. Moreover, even if the first prong was met, there is no evidence of bad faith, as required under the second prong. Accordingly, there is no legal or factual basis for the drastic remedy of wholesale suppression in connection with the search in the instant case and the motion to suppress on such grounds is denied.

B. The Computer Search

Defendant also argues that the forensic search of the computer seized from the home that uncovered an AOL search for "arson rico laws" must be suppressed because it was beyond the scope of the warrant. However, the Court disagrees and finds no basis to suppress the evidence of the AOL search seized from the computer.

1. The Facts

On January 18, 2008, the Court conducted a suppression hearing concerning the computer search. The government called one witness, William Moylan. Moylan testified at the suppression hearing regarding his forensic search of the Dell desktop computer seized from defendant's home on July 13, 2004 in Oceanside, New York. (Supp. Hr'g Tr., Jan. 18, 2008.) The defendant called no witnesses. After evaluating the credibility and demeanor ...


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