In re Motion to Quash Grand Jury Subpoenas

• Decision Date: 22 August 1984
• Docket Number: Misc. No. 83-00005-BL.
• Citation: 593 F. Supp. 184
• Court: U.S. District Court — Southern District of West Virginia
• Parties: In re MOTION TO QUASH GRAND JURY SUBPOENAS (Regional Consulting Services for Economic and Community Development, Inc.)

593 F. Supp. 184

In re MOTION TO QUASH GRAND JURY SUBPOENAS (Regional Consulting Services for Economic and Community Development, Inc.)

Misc. No. 83-00005-BL.

United States District Court, S.D. West Virginia, Bluefield Division.

August 22, 1984.

COPYRIGHT MATERIAL OMITTED

Michael W. Carey, Asst. U.S. Atty., Charleston, W.Va., for plaintiff.

Edwin B. Wiley, Sanders & Wiley, Bluefield, W.Va., for defendant Regional Consulting Services.

Stephen B. Goad, Princeton, W.Va., for defendant Region I Planning and Development Council.

Robert B. King, King, Betts & Allen, Charleston, W.Va., for defendant Michael B. Jacobs, Executive Director of Region I Planning and Development Council and Project Director of Regional Consulting Services for Economic and Community Development, Inc.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Michael B. Jacobs, individually and as Executive Director of Region I Planning and Development Council and Project Director of Regional Consulting Services for Economic and Community Development, Inc., moves this Court, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure.¹

The Movants challenge the search warrant on seven grounds, four of which relate to its issuance and three concerning its execution:

1. The warrant was issued without probable cause;

2. The warrant failed to adequately describe the premises to be searched;

3. The warrant did not adequately describe the property to be seized;

4. The warrant did not allege that the property sought is evidence of a crime;

5. The warrant was void when the searches and seizures were conducted on August 13, 1983;

6. The property seized was not described in the warrant and the warrant was not properly executed; and

7. The return of the warrant was improperly made.

For the reasons discussed below, the Court concludes that the search warrant was properly issued and executed and therefore denies Movants' motion to suppress.

I. Background

On August 2 and 3, the United States Attorney for the Southern District of West Virginia issued on behalf of a sitting grand jury three subpoenas duces tecum requiring Regional Consulting Services for Economic and Community Development, Inc., Region I Administrative Services/Michael B. Jacobs, Executive Director and Region I Planning and Development Council to produce certain records at the United States Attorney's Office on August 23, 1983. The subpoena to Regional Consulting Services requested the following documents:

"All records and documents relative to all Federal and State Grants, including corporate charts, corporate minutes, monthly checking and savings account statements, signature cards, original checks, loans, loan applications, financial statements, all ledger books, and travel and entertainment expenses and receipts from January 1, 1981, to date. Also, this is to include Certificate of Deposits."

The records subpoenaed from Region I Administrative Services were identical to those subpoenaed from Regional Consulting Services except the time period was enlarged to include documents from January, 1978, to the date of the subpoena.

The third subpoena, to Region I Planning and Development Council, required production of the same documents as the subpoena to Region I Administrative Services described in the preceding paragraph.

After receiving the subpoenas Attorney Edwin B. Wiley, counsel for Regional Consulting Services and Region I, notified this Court and the United States Attorney on August 10, 1983, that he would file a motion to quash the subpoenas. He did so on August 11, 1983, and the matter was set down for a hearing before this Court on August 15, 1983.

According to the Government's memorandum of law in opposition to the Movants' instant motion, the following events (which are not disputed by Movants) transpired before the scheduled hearing could be held on the motion to quash the subpoenas:

"Corporal Gary Slater, of the West Virginia State Police, learned that certain documents called for in the subpoenas duces tecum had been thrown into the trash containers behind the Region I offices in Princeton, West Virginia. Corporal Slater's affidavit to this effect was attached to the Government's memorandum. On August 11, 1983, at approximately 6:30 p.m., Slater personally removed various plastic trash bags containing documents called for in the subpoenas duces tecum from the Region I trash containers, and on Friday, August 12, 1983, Slater contacted William Pauer, Postal Inspector, at approximately 2:00 p.m. to advise him what he (Slater) had discovered. Thereafter, at approximately 2:30, Slater and Pauer met at the United States Attorney's Office where Pauer personally viewed the items contained in the trash bags and determined that certain items were in fact called for in the subpoenas duces tecum. They then met with Richard S. Glaser, Jr., an Assistant United States Attorney.

At this time, it was determined that a search warrant should be obtained to search for evidence relevant to the possible commission of obstruction of justice by persons associated with Region I and RCS. Initially, the `Affidavit for Search Warrant' was drafted for the signature of Corporal Slater, in that he had personal knowledge as to the destruction of records called for by the subpoenas duces tecum. Corporal Slater, however, left the United States Attorney's Office to attend to certain personal matters in anticipation of traveling to Princeton, West Virginia, to execute the search warrants.

Glaser, uncertain whether Slater would return in time to sign the affidavit, then substituted Pauer as the affiant. At approximately 4:45 p.m. Pauer, Glaser and Slater² appeared before Magistrate Jerry D. Hogg where Pauer was sworn and executed the affidavit. Magistrate Hogg issued the search warrant at approximately 4:55 p.m.

Shortly after the issuance of the search warrant, Pauer and Slater left Charleston and proceeded to Princeton, West Virginia, to execute the warrant. Postal Inspectors Anthony J. Crawford and Anthony Cannarella, who were in Charleston, were directed by Pauer to go to Hinton, West Virginia, to execute the search at that location. Postal Inspectors E.D. Matyas and Richard L. Dent, also stationed in Charleston, West Virginia, were directed to go to Welch, West Virginia, to execute the search at that location. Once they arrived at their respective locations, both groups had been instructed to contact Pauer at the State Police Barracks in Princeton prior to proceeding with the search. Pauer and Slater arrived in Princeton at approximately 8:00 p.m. at which time no one could be observed in the Region I office in Princeton. Accordingly, Pauer determined not to execute the searches until the next day when entry into the various premises could be made without causing any damage. At this time, Pauer was not aware that the day's date, that is August 12, 1983, had been placed on the search warrant as the date that the search must be made and was operating under the impression that he had ten days from the issuance of the warrant to conduct the search. The other Postal Inspectors were advised to call Pauer the next morning.³

The warrant was executed on August 13, 1983, at four of the five offices of Region I named in the search warrant.⁴ Pauer's decision to wait until August 13 to conduct the searches, and thus avoid property damages to the target offices, proved productive on the day of the searches when employees with keys to each of the offices were located. With access to the offices obtained without incident, searches were conducted and documents seized at each of the five offices listed in the search warrant.

A. ISSUANCE OF THE SEARCH WARRANT. In this section, the Court will discuss the four grounds advanced by Movants which challenge the issuance of the search warrant.

1. Probable Cause Existed for the Issuance of the Search Warrant. Movants' contention that probable cause did not exist for the issuance of the search warrant is not well taken. Rule 41(c)(1) provides, in pertinent part, as follows:

"A warrant ... shall issue only on an affidavit or affidavits sworn to before the federal magistrate ... and establishing the grounds for issuing the warrant. If the federal magistrate ... is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property to be seized and naming or describing the ... place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part."

Pauer's affidavit alleged the following grounds in support of the request for the search warrant:

"That Michael Jacobs on or about August 9 and 11, 1983, did corruptly influence, obstruct and impede, the due administration of justice in that he attempted to conceal, alter and destroy documentary evidence subject to and under a subpoena duces tecum of the Grand Jury of this Court at Charleston, Kanawha County, West Virginia, which documentary evidence was material to investigations then and there pending before the Grand Jury; in violation of Title 18, United States Code, Section 1503."

The affidavit also alleged "the following facts establishing the foregoing grounds for issuance of the Search Warrant":

"That Michael B. Jacobs on or about August 9 and 11, 1983, did attempt to destroy certain documentary evidence as described above by placing it in garbage cans located in an alley located behind the offices of Region I Planning and Development Council, East River Office Building, 1336 Mercer Street, Princeton, West Virginia, which garbage cans would be emptied of their contents by the City of Princeton and such contents burned and destroyed at the Mercer County landfill."

Pauer's affidavit obviously satisfied Magistrate Hogg that probable cause existed to believe the subpoenaed documents were being destroyed and justice obstructed in violation of 18 U.S.C. § 1503 as evinced by his...