Fink v. State

• Decision Date: 21 February 2003
• Docket Number: No. 344,2002.,344,2002.
• Citation: 817 A.2d 781
• Court: Supreme Court of Delaware
• Parties: Kenneth E. FINK, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below Appellee.

817 A.2d 781

Kenneth E. FINK, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below Appellee.

No. 344,2002.

Supreme Court of Delaware.

Submitted: December 3, 2002.

Decided: February 21, 2003.

Reargument and Rehearing En Banc Denied March 20, 2003.

Joseph A. Hurley, Wilmington, Delaware, for Appellant. Elizabeth R. McFalan, Department of Justice, Wilmington, for Appellee.

Before WALSH, BERGER and STEELE, Justices.

STEELE, Justice.

In November 2001, a Superior Court jury convicted appellant Kenneth Fink of fifteen counts of Unlawfully Dealing in Materials Depicting a Child Engaged in a Prohibited Act¹ and fifteen counts of Possession of Child Pornography.² The charges arose out of the discovery of child pornography on a computer compact disk and three zip disks seized from Fink's home. The seizure of child pornography occurred during the execution of the third of three search warrants. In this appeal, Fink asserts five grounds of error: (i) the search warrant was over-broad and lacked probable cause; (ii) the sentence of eight years at Supervision Level V was excessive; (iii) the prosecution of 30 counts violated Fink's rights against double jeopardy; (iv) the trial judge improperly instructed the jury; and (v) the statute under which the defendant was convicted is facially unconstitutional. We conclude that the defendant's arguments lack merit and that the convictions should be affirmed.

In April 1998, the Office of Disciplinary Counsel received a complaint from a co-executor of the estate of Patricia Zimmerman that Fink, an attorney admitted to the Delaware Bar, had unreasonably delayed probate of the estate. When the ODC contacted Fink, he indicated that a final accounting and closure of the estate would occur within one month. Fink failed to keep his promise, however, and in October 1999, the ODC arranged to have Fink's business financial records audited by an auditor for the Lawyers' Fund for Client Protection. The auditor discovered one check written from the Zimmerman estate funds payable to Fink in the amount of $40,000 and three other checks written to a company called Kamair. The four checks totaled $57,272.03 and none of the checks were authorized payments from the estate. The audit also revealed a deposit of three checks from the Kamair account into the estate account. Fink signed the three checks with the notation "personal funds." Fink also deposited $15,200 of his personal funds in the trust account on February 25, 2000. However, the total of Fink's and Kamair checks deposited in the Zimmerman estate account equated to $13,306.50 less than the amount of the four checks withdrawn from the estate account. The auditor concluded that the four checks drawn on the Zimmerman estate account payable to Fink and Kamair constituted unauthorized transfers of estate funds for Fink's benefit.

By letter dated February 29, 2000, Fink, through counsel, informed the ODC that he "borrowed" $40,000 from the Zimmerman estate to purchase an airplane for use in a private business. Records from the Office of the Secretary of State revealed that a corporation named Kamair Aviation, Inc., created by Fink in 1992, had been voided for non-payment of franchise taxes in March 1994. An Attorney General's subpoena also revealed Fink to be the authorized signer on a Kamair account at a local bank.

On March 7, 2000, this Court granted the ODC's petition to suspend Fink from the Delaware Bar for mishandling and converting client funds for personal use.³ The ODC also applied to the Court of Chancery for, and that Court granted, appointment of a receiver for Fink's law practice. While these actions were occurring, Fink filed a motion in opposition to the application for interim suspension of his law license. The motion stated that he represented approximately 40 clients in various matters and the motion included a list of those active matters.

On March 17, 2000, the receiver informed an investigator with the Office of the Attorney General that the co-executor of the estate of Jeanette Connell had contacted him. The co-executor reported that Fink was handling the Connell estate and that she read a newspaper article concerning Fink's suspension from the practice of law. The co-executor also reported that she contacted the bank that held the deposited funds and the bank stated that the all funds had been withdrawn and the account has been closed. The co-executor also told the receiver that Fink had performed the settlement of a real estate transfer between the estate of Jeanette Connell to Shirley McAllister totaling $46,783.35 and those funds were entrusted to Fink pending settlement of the Connell estate. The receiver investigated this information and learned that Fink closed the account holding the estate funds on December 2, 1999. The receiver reported to the investigator that: (1) Fink's list of open cases contained no mention of the names McAllister and Connell; (2) Fink had not turned over any files concerning the McAllister settlement or the Connell estate; and (3) Fink's law office contained no record of the files or accounts. The receiver further reported that he contacted the bank and personally confirmed that Fink transferred the funds into his law practice operating account and that Fink later transferred the funds into a money market account.

On March 20, 2000, the State obtained a warrant to search Fink's residence and car. The officer who signed the affidavit in support of the application reported that he had 20 years of experience as a police officer and 11 years experience as an investigator for the Attorney General. He concluded the affidavit by stating that it was his "experience from past investigations that personal financial records are maintained at the individuals residence" and that it "is not unusual for the sole proprietors of a business to take work or files home or maintain business records at their residence." The warrant authorized a search of the defendant's personal residence and car for the following:

Client files including but not limited to Estate of Jeanette Connell, Shirley McAllister, Patricia Zimmerman, banking or financial records of Kamair, Kamair Aviation, Inc., Artisans Bank account number XXXXXXXXX, personal banking records or any financial or banking records involving the transfer, cashing or deposit of funds from any of the above or related transactions, personal banking records of Kenneth Fink whether held individually or jointly, lists or directories of names, telephones numbers and addresses, notes, memorandum, files, court documents or other related documents or documents indicating legal action taken by or for Kenneth Fink personally or as legal representative, files associated with Kamair, Kamair Aviation, Inc., or any other combination of Kamair, lease and or purchase agreements for any aircraft purchased by or thru Kenneth Fink or any company or corporation in his custody, either in written or electronic format which are evidence of a crime or crimes as outlined in the attached affidavit of probable cause.

The State executed the warrant the following day. The officers seized two desk-top computers, two computer hard drives, forty-two zip discs, two CD Roms and three floppy disks from the defendant's home. On March 22, 2000, the State obtained a second warrant that authorized the search of the hard drives of the seized computers and the various disks and CDs. While searching a CD, the officer discovered a filed named Pre-Teen.jpg. The officer opened the file and discovered a picture of child pornography. The State then obtained a third warrant to search the same items for additional evidence of child pornography. The execution of the third warrant led to the discovery of more than 190 visual depictions of child pornography.

Before trial, Fink moved to suppress all the evidence, arguing that the warrant lacked sufficient particularity and was overbroad, and that there was no probable cause to search his home. The trial judge denied the motion, finding both probable cause and sufficient particularity. In this appeal, Fink reiterates the arguments presented before the trial judge.

Fink first contends that the search warrant did not meet the specificity requirements of either the federal or Delaware Constitutions, or the Delaware statutory mandates. Specifically, Fink alleges that the words in the warrant, "client files including, but not limited to," were too broad in scope and failed to adequately limit the search to those items for which probable cause had been established.

We agree with the trial judge's analysis and conclusion in his opinion that the language of the warrant was neither vague nor overly broad.⁴

A search warrant may be issued only upon a showing of probable cause.⁵ In addition, a warrant must describe with particularity the place to be searched and the person or items to be seized.⁶ "The purpose of requiring specificity in warrants is to avoid general exploratory searches, leaving little discretion to the officer executing the warrant."⁷ In this case, the description of "client files including but not limited to" those specifically listed clients and the personal banking records of Fink are neither vague nor ambiguous. There is no question about what the searcher should have been seeking or that there were reasonable limitations inherent in the scope of the search. Items indicative of probable criminal conduct discovered during the scope of the search were properly seized under the specific terms of the warrant. Accordingly, Fink's argument that the warrant lacked specificity is without merit.

Fink next claims that the warrant was overbroad. Fink asserts that since he was accused of malfeasance with regard to the Zimmerman or McAllister estate, the State could search for those files only and not conduct a general search of all Fink's files. We disagree. Fink had represented in a court motion that he had approximately forty open c...