U.S. v. Spy Factory, Inc., S1 95 cr 737 (SS).

• Citation: 951 F.Supp. 450
• Decision Date: 08 January 1997
• Docket Number: No. S1 95 cr 737 (SS).,S1 95 cr 737 (SS).
• Parties: UNITED STATES of America v. The SPY FACTORY, INC. d/b/a "Spy Factory," Ronald Kimball, Marlin Richardson, a/k/a "Brud," and Tracy Edward Ford, Defendants.
• Court: U.S. District Court — Southern District of New York

951 F.Supp. 450

UNITED STATES of America v. The SPY FACTORY, INC. d/b/a "Spy Factory," Ronald Kimball, Marlin Richardson, a/k/a "Brud," and Tracy Edward Ford, Defendants.

No. S1 95 cr 737 (SS).

United States District Court, S.D. New York.

January 8, 1997.

COPYRIGHT MATERIAL OMITTED

Lefcourt & Dratel, P.C., New York City (Gerald B. Lefcourt, Joshua L. Dratel, Gary G. Becker, of counsel), for Defendant, The Spy Factory, Inc.

Goldstein, Goldstein & Hiley, San Antonio, TX, (Gerald H. Goldstein, Patrick T. Peranteau, of counsel), Robert Fogelnest, New York City, for Defendant, Ronald Kimball.

Ronald Ederer, San Antonio, TX, Marvin Schecter, New York City, for Defendant, Marlin Richardson.

Robert O. Switzer, San Antonio, TX, Ruth M. Leibesman, New York City, Roger Bennet Adler, CJA Attorney, New York City, for Defendant, Tracy Ford.

U.S. Department of Justice, United States Attorney, Southern District of New York, New York City, Daniel J. Fetterman, Thomas C. Rubin, Assistant United States Attorneys, for U.S.

AMENDED OPINION AND ORDER

SOTOMAYOR, District Judge.

Defendants move, pursuant to Fed. R.Crim.P. 21(b), to change the venue of this action from the Southern District of New York to the Western District of Texas. Further, defendants move to dismiss a portion of Count 1, as well as Counts 2 through 16 and 17 through 31 of the Indictment on the ground that the statute upon which the prosecution of these counts is based, 18 U.S.C. § 2512, is unconstitutionally vague. For the reasons to be discussed, defendants' motions are DENIED.

BACKGROUND

The Spy Factory "is a retail store concept developed in 1989 to sell personal protection devices and personal security items to the general public and law enforcement agencies." (Defs.' Vagueness Mem. at 3)¹. "At the time of the initial searches and arrests in this case, Spy Factory, which is headquartered in Texas, had 16 stores located throughout the United States." (Id.).

"In 1993, the United States Customs Service ... began an investigation of illegal bugging and wiretapping devices that were imported into the United States and sold by various so-called `spy shops.'" (Govt Mem. at 2). According to the Government, "Spy Factory was and is the largest chain of retail `spy shops' in the country." (Id.) Working across the country, but centralizing its efforts in New York City, the Government used undercover agents and confidential informants to gather evidence to prosecute the Spy Factory and the individually-named defendants for "violations of customs laws, Section 2512 of Title III, and the Communications Act of 1934." (Govt Mem. at 4).

"On August 16, 1995, a grand jury sitting in the Southern District of New York returned an eight-count indictment ... charging Spy Factory, its owner, Ronald Kimball, its general manager, Marlin Richardson, a/k/a `Brud,' and its deputy general manager, Tracy Edward Ford, with a conspiracy to smuggle and sell illegal bugging and wiretapping devices. ..." (Govt Mem. at 4). On June 12, 1996, a grand jury returned a 70-count superseding indictment adding to the original indictment "several objects to the conspiracy, and additional substantive violations of Title 18, United States Code, Sections 2512(1)(a), 2512(1)(b), and 545 relating to numerous sales of illegal bugging and wiretapping devices from the Southern District of New York." (Id.) The indictment also included "a conspiracy and substantive counts of money laundering." (Id.).

On June 14, 1996, the Honorable Milton Pollack, then acting as Part One Judge of this District, signed an ex parte restraining order that put the assets of Spy Factory "under the control of a special monitor from the accounting firm of KPMG Peat Marwick, LLP, who oversees and controls expenditures of funds, including expenditures for legal expenses in this case." (Defs.' Venue Mem. at 14). "Under the terms of the Restraining Order ... and related letter agreement ... dated August 28, 1996, ... the corporation is limited to $2,000.00 per month for the payment of legal expenses." (Defs.' Venue Mem. at 14).

On September 16, 1996, less than four months before the scheduled trial date of January 14, 1997, and approximately one year after the first pre-trial conference in this action, the defendants filed their pretrial motions in this action. The defendants moved, inter alia, for a change of venue from the Southern District of New York to the Western District of Texas, where Spy Factory is headquartered and where all the defendants and most of the defense witnesses reside. The defendants claim that trial in New York is beyond the means of at least two of the defendants to afford and that forcing defendants and their counsel and witnesses to travel to, and be lodged in, New York, "one of the most expensive cities in the world," (Defs.' Venue Mem. at 4), would impose a tremendous financial burden upon them. Further, defendants insist that if they are forced to stand trial in the Southern District of New York, their businesses and employment in San Antonio would be seriously jeopardized. They contend that given these considerations, "the interests of justice" require that the trial be moved to San Antonio, Texas.

The Government counters that defendants unduly delayed their filing of the change of venue motion and that such delay should militate against the Court's granting of the motion. Furthermore, the Government argues that if the trial were transferred to Texas, not only would the Government incur significant financial expenses to move all its case-related materials and personnel out-of-state, but that the trial itself inevitably would be delayed so that local assistant United States attorneys in Texas could familiarize themselves with the intricacies of the case. With respect to the defendants' assertions that their businesses and employment prospects would suffer if they were tried in New York, the Government minimizes this argument by contending that "inconvenience and interference with normal occupational and personal activities occur whenever a defendant is involved in a trail [sic] facing serious charges." (Govt Mem. at 43). They conclude, "[t]he defendants' contention that they plan to carry on their normal occupational activities during the lunch hour and after-hours of this major trial in which they face serious charges is highly dubious, and is insufficient in light of the delay and other factors in this case to warrant a change of venue." (Govt Mem. at 44).

With respect to the personal financial burden that at least two of the defendants would have to endure by having the case tried in New York, the Government contends that the financial impact on the defendants of trial in New York can be alleviated considerably. At an oral argument held on December 13, 1996, the Court determined that both defendants Tracy Ford and Marlin Richardson qualified for appointment of CJA counsel.² The Court asked the Government whether it would agree to pay the travel and lodging expenses of these defendants in the same manner it had offered to do in United States v. Wheaton, 463 F.Supp. 1073, 1078 (S.D.N.Y.), aff'd sub nom., United States v. Williams, 614 F.2d 1293 (2d Cir.1979). During a conference held with the Court on December 19, 1996, the Government agreed to pay for the travel and lodging costs of defendants Tracy Ford and Marlin Richardson and their attorneys during the trial. The Government also agreed to pay for three trips home for defendants Ford and Richardson and their counsel during the course of the trial so that the effect of the defendants' separation from their families and businesses would be alleviated to some extent. At the same conference, the Government noted that the Criminal Justice Act would cover any expenditures necessary to bring relevant defense witnesses for these defendants to New York for trial.

The defendants also move to dismiss the majority of the counts in the Indictment on the grounds that the statute upon which the prosecution is based, 18 U.S.C. § 2512, is unconstitutionally vague as applied to them. In short, the defendants argue that the terms "primarily" and "surreptitious" in the statute render its meaning unconstitutionally vague, especially when read in connection with § 2511 of the statute, which purports to legalize some forms of "surreptitious" interceptions, i.e., interceptions of conversations in which at least one party to the conversation consents, while other forms of "surreptitious" interceptions remain illegal, i.e., interceptions of conversations in which no party to the conversation consents to its interception.

The Government responds that the terms "primarily" and "surreptitious" are sufficiently clear to provide notice to the defendants that their conduct was unlawful, particularly when considered in conjunction with the legislative history of the act which provides specific examples of prohibited items. With respect to the defendants' argument that Section 2511 causes confusion in the interpretation of "surreptitious" under Section 2512, the Government maintains that there is no conflict between the two provisions because Section 2512 deals with the prohibition of certain devices while Section 2511 speaks to the permissibility of certain conduct. In sum, the Government insists that any reasonable person would know that Spy Factory's conduct was "at risk" under the act. (Govt. Mem. at 8).

In their pretrial motions, defendants made several discovery requests and moved for the suppression of evidence seized in the search of Spy Factory stores. For the reasons set forth on the record at the December 13, 1996 conference, the Court denies the discovery requests in part and grants others, in part, and denies the suppression motion. (12/13/96 Tr. at 39-59).

As of May 6, 1996, the Court had set a trial date of January 14, 1997. After oral argument on the instant motions, however, defendant Tracy Ford decided, after a Curcio hearing, that a potential...