United States v. Benevento
| Decision Date | 17 December 1986 |
| Docket Number | No. SSS 86 Cr. 485 (EW).,SSS 86 Cr. 485 (EW). |
| Citation | 649 F. Supp. 1379 |
| Parties | UNITED STATES of America, v. Ernesto J. BENEVENTO, Ernest A. Benevento, a/k/a "Anthony Nuccio," Guido Rendel, a/k/a "Paul Hanson," Earl Admiral Keller, and Carmine Loiacono, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Peter M. Lieb and John K. Carroll, Asst. U.S. Attys., of counsel), for U.S.
Goldberger & Dubin, P.C., New York City (Lawrence A. Dubin and Paul A. Goldberger, of counsel), for defendants Ernesto J. Benevento and Earl Admiral Keller.
Entin, Schwartz, Barbakoff & Schwartz, North Miami Beach, Fla. (Alvin Entin and Frederick Schwartz, of counsel), for Ernest A. Benevento.
Fischetti & Pomerantz, New York City (Mark F. Pomerantz, of counsel), for defendant Carmine Loiacono.
Five defendants are named in an indictment charging conspiracy and substantive violations of the RICO statute, 18 U.S.C. § 1962(a), centering primarily about the importation, manufacture, distribution, and possession with intent to distribute heroin in violation of the Drug Control Act, 21 U.S.C. § 812, et. seq. Three codefendants join in motions pursuant to Fed.R.Crim. 12(b) and 41 for an order to suppress all evidence obtained as a result of:
We consider each motion separately.
Ernesto J. Benevento and Ernest A. Benevento move to suppress the fruits of the warrantless search of their persons and luggage that took place on June 3, 1985 at John F. Kennedy Airport. The search resulted in discovery of $952,000 in undeclared cash which was being transported out of the country in apparent violation of federal currency laws. The Beneventos maintain that there was no probable cause or reasonable suspicion to justify the search.
They first argue that border searches of persons leaving the United States should be held invalid unless conducted in accordance with the probable cause requirement of the Fourth Amendment. This contention is in direct conflict with the clear weight of authority of our Court of Appeals, which has explicitly held that the "border search" exception to the Fourth Amendment, established by the Supreme Court in United States v. Ramsey,1 applies to persons leaving the United States as well as persons entering it.2 Defendants have presented no reason to disturb this settled precedent.
Defendants next argue that the search was aimed at discovering unreported currency and that under 31 U.S.C. § 5317(b), currency searches may be conducted only if there is "reasonable cause" to believe that evidence of a currency violation will be found. Claiming the government had no such reasonable cause, the Beneventos urge the exclusion of the fruits of the search to deter future violations of § 5317(b). The government does not dispute that the search was a currency search, but maintains, first, that there was "reasonable cause" to conduct the search and second, that even if not and § 5317(b) was violated, the evidence obtained as a result should not be excluded since no exclusionary remedy is provided for in the federal statute.
In support of this proposition, the majority noted that exclusion is the general rule when the Fourth Amendment is violated and that in Rea v. United States,4 and other Supreme Court cases, an exclusionary remedy had been applied to federal rules and statutes that did not explicitly so provide.
This Court declines to follow Chemaly, because there is no evidence in either the language or the legislative history of § 5317(b) to suggest that Congress, in enacting that provision in 1984, intended that an exclusionary remedy be applied to illegally seized evidence.5 Defendant's argument can draw no support from the application of such a remedy in other situations. Because the Fourth Amendment does not apply to border searches, the fact that the exclusionary rule is the remedy for Fourth Amendment violations carries no force in this instance. Moreover, the cases applying an exclusionary remedy under other statutes and rules are distinguishable. In Rea v. United States, for example, the application of an exclusionary remedy for a violation of the Federal Rules of Criminal Procedure was based in part on the fact that those rules were originally prescribed by the Supreme Court, giving the Court special authority in their interpretation and enforcement. Finally, it is to be noted that Congress in its own enactments does not rely on silence to indicate an exclusionary rule is appropriate; in enacting the electronic surveillance statute, for example, Congress made specific provisions for the exclusion of illegally obtained evidence. Having exercised its power explicitly in previous instances, had Congress wanted to exercise its authority in this instance, it knew how and would have expressed that purpose.6
Moreover, it must be remembered that Chemaly concerns the precursor to § 5317(b), a statute enacted in 1970 to require that border searches be conducted pursuant to warrants. Chemaly's conclusions as to Congressional intent in 1970 are of doubtful relevance to the question of Congress's intent when it enacted § 5317(b) fourteen years later, particularly when the express purpose of the new statute was to reduce the barriers to conducting currency searches. As Judge Platt noted in United States v. Turner,7 § 5317(b) eliminated the warrant requirement to give federal agents a freer hand in halting the efforts of drug traffickers to smuggle their earnings out of the country. Given the absence of any indication that Congress intended an exclusionary remedy, and given that such a remedy would weaken the manifest purpose of the statute, the Courts should not amend the statute by applying an exclusionary rule. The fruits of the airport search are thus admissible, and the motion to suppress is denied.
On May 28, 1986, a magistrate of the Southern District of Florida issued warrants authorizing the search of the residence of Ernesto J. Benevento at 14780 Draft Horse Lane, West Palm Beach, Florida, and the residence of Ernest A. Benevento at 14832 Draft Horse Lane, also in West Palm Beach. The list of items to be searched for included:
Monies, books, records, financial records, computer hardware and software, papers, photographs, documents, personal address books, and other things which constitute evidence of the commission of are are sic designed or intended as a means of or are the contraband or the fruit of the violation of the federal narcotics laws, the federal currency laws, and the federal tax laws.
The affidavits submitted to the magistrate described in detail evidence to support the charge that the Beneventos were part of a vast and far-flung criminal enterprise which, prior to June 3, 1985, had imported into the United States heroin and heroin precursor products with a street value in excess of $225,000,000. Based on interviews with confidential informants, the affidavits described the importation of morphine base at West Palm Beach, and its transportation to Phoenix, Arizona, where it was converted into heroin and shipped to New York for distribution. The affidavits also described how, again prior to June 3, 1985, the Beneventos were involved in several attempts to smuggle hundreds of thousands of dollars out of the United States on international air flights. During the first half of 1985 alone, currency in excess of $1,500,000 was seized from the Beneventos and Fatima dos Santos Nobre, an alleged accomplice. A review of the Beneventos' tax returns and known real estate holdings was also submitted as evidence of their unexplained and unreported wealth.
The principal affiant as to these matters was Louis A. Pharao, a Drug Enforcement Agent with six years' experience in approximately 200 narcotics investigations, of which 150 involved the distribution of heroin. Agent Pharao stated that the Beneventos operated "at the highest levels of international narcotics trafficking" and that significant drug traffickers frequently maintain, among other things, large amounts of currency, records relating to drug transactions, and lists of names and telephone numbers of persons involved in such transactions. Because drug traffickers need ready access to these items and personal financial records are customarily kept at home, and because the Beneventos' homes were equipped with computers and computer pulse telephone lines that might prove useful in managing data concerning criminal transactions, Agent Pharao stated his belief that the Beneventos' residences contained evidence that would be probative of violations of federal narcotics, currency, and tax laws.
Under United States v. Leon,8 even if probable cause for a search is in fact lacking, the...
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