United States v. Dimora

• Decision Date: 28 December 2011
• Docket Number: Case No. 1:10CR387.
• Citation: 836 F.Supp.2d 534
• Parties: UNITED STATES of America, Plaintiff, v. James C. DIMORA, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

836 F.Supp.2d 534

UNITED STATES of America, Plaintiff,

v.James C. DIMORA, et al., Defendants.

Case No. 1:10CR387.

United States District Court,

N.D. Ohio,

Eastern Division.

Dec. 28, 2011.

Ann C. Rowland, Antoinette T. Bacon, Heather Tonsing Volosin, James L. Morford, Robert J. Patton, Office of the U.S. Attorney, Cleveland, OH, Nancy L. Kelley, Office of the U.S. Attorney, Akron, OH, for Plaintiff.

Andrea L. Whitaker, William T. Whitaker, Jr., Law Office of William T. Whitaker, Akron, OH, William T. Whitaker, Jr., Lorraine R. Baumgardner, Berkman, Gordon, Murray & Devan, William T. McGinty, McGinty, Hilow & Spellacy, David G. Oakley, Leif B. Christman, John T. Bender, Robert J. Rotatori, Richard L. Stoper, Rotatori Bender, Paul M. Shipp, Weston Hurd, William T. Doyle, Cleveland, OH, John F. Corrigan, Rocky River, OH, Michael P. Maloney, Westlake, OH, for Defendants.

OPINION & ORDER

SARA LIOI, District Judge.

The Indictment charges the defendants, James C. Dimora and Michael D. Gabor, with RICO conspiracy, conspiracy to commit mail fraud and honest services mail fraud, Hobbs Act violations, and various other related crimes. (Doc. No. 444, Third Superseding Indictment.) ¹ The charges stem from an extensive three-year federal investigation into allegations of public corruption in Cuyahoga County, Ohio.

On September 1, 2011, defendants filed a series of pre-trial motions. A hearing on all of the pre-trial motions was held October 5, 2011. The Court has already issued several opinions and orders addressing many of these motions. This opinion addresses the remaining pre-trial motions, specifically: Dimora's motion to suppress evidence seized from the search of his home and office (Doc. No. 422); Dimora's motion for disclosure of grand jury transcripts and the identities of confidential informants (Doc. No. 417); the motions of Gabor and Dimora to suppress wiretaps (Doc. No. 423 and 424, respectively); and Dimora's motion to suppress wiretaps based on a failure to minimize (Doc. No. 484).

I. Dimora's Motion to Suppress Evidence Seized from His Home and Office (Doc. No. 422)

Defendant Dimora seeks to suppress all evidence seized during the July 2008 searches of his home and office owing to what he perceives as insufficiencies in the search warrants and the affidavit offered in support of those warrants. Specifically, Dimora insists that: (1) the affidavit lacked the requisite nexus between the places to be searched and the evidence to be seized; (2) the search warrants were overly broad; (3) the search warrants authorized the seizure of political speech; (4) the affidavit relied on wiretaps obtained in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968; and (5) the warrants were not supported by probable cause. The government filed a response in opposition to Dimora's motion (Doc. No. 478.) and Dimora subsequently filed a reply (Doc. No. 511). Dimora's fourth contention will be addressed in the separate section of this opinion devoted exclusively to the defendants' motions to suppress the wiretaps. The remaining contentions are addressed directly below.²

On July 25, 2008, a warrant application was submitted for the search of Dimora's office, as well as the work spaces of other individuals located within the Cuyahoga County Administration Building. (Doc. No. 422–1, Ex. A.) That same day (July 25, 2008), a second application was filed for the search of Dimora's home. (Doc. No. 422–2, Ex. B.) Both applications were supported by a Master Affidavit, totaling more than 365 pages and including contributions from IRS Agent Kelly Fatula and FBI Special Agent Gregory Curtis. (Doc. No. 422–3 and 422–4, Ex. C.) ³ The Master Affidavit included information derived from a review of bank records and pen registers, physical surveillance, the interception of telephonic communications, search and seizures of computer systems, consensual recordings, and interviews with confidential sources. Both contributing agents also drew from their personal experiences as federal officers in presenting the information to the neutral magistrate.

The Fourth Amendment mandates that there must be probable cause for any search and seizure. U.S. Const. amend. IV. “Probable cause has been defined as ‘reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.’ ” United States v. Padro, 52 F.3d 120, 122–23 (6th Cir.1995) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990)). “To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005) (internal quotations and citation omitted). “Probable cause is based on the totality of the circumstances; it is a ‘practical, non-technical conception that deals with the factual and practical considerations of everyday life.’ ” United States v. Abboud, 438 F.3d 554, 571 (6th Cir.2006) (quoting Frazier, 423 F.3d at 531);see United States v. Lazar, 604 F.3d 230, 241–42 (6th Cir.2010) (trial judge properly found probable cause in common-sense manner where affidavit was based on two-year involvement in case, personal visits to locations, review of bills, and extensive interviews).

A. Nexus with the Location Searched

Dimora first challenges the sufficiency of the affidavit supporting the warrants because it allegedly failed to establish the necessary nexus between the places searched and the items to be seized. “To justify a search, the circumstances must indicate why evidence of illegal activity will be found ‘in a particular place.’ There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.’ ” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (quoting United States v. Van Shutters, 163 F.3d 331, 336–37 (6th Cir.1998)). See Frazier, 423 F.3d at 531 (internal quotation and citation omitted) (“To demonstrate probable cause to justify the issuance of a search warrant, an affidavit must contain facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.”) Dimora suggests that the Master Affidavit merely recites conversations between himself and others, but “provides no real implication that any physical or tangible evidence supporting the allegations made in the affidavit would actually exist at the places to be searched.” (Mot. at 6.)

1. The Office Search

With respect to his office, Dimora complains that the Master Affidavit “alleges only that Mr. Dimora's office possesses a fax machine, Mr. Dimora uses the fax machine and that Mr. Dimora's assistant was able to handle some business for him.” (Mot. at 7.) He notes that it also alleges that records of calls and meetings may be found at his office.

The government posits that the search warrant for the office instructed agents to seize personal and financial records, campaign records, records pertaining to County employees, and other records relating to County work. It insists that the fact that Dimora served as County Commissioner and had a County office assigned to him for use as County Commissioner is sufficient to establish probable cause that records of county business would be found there. Given the fact that the allegations of criminal activity set forth in the Master Affidavit focused on actions Dimora allegedly took in his position as a Cuyahoga County Commissioner, the Court agrees with the government. See Abboud, 438 F.3d at 572 (“One does not need Supreme Court precedent to support the simple fact that records of illegal business activity are usually kept at either a business location or at the defendant's home.”); see, e.g., Lazar, 604 F.3d at 241 (warrant applications provided “a fair probability that evidence of health care fraud—namely, the defendant's patient files and records—would be found at the defendant treating physician's offices”).

According to Dimora, the Master Affidavit only offers evidence that he used his office (and his home) for work, and separately offers evidence that he engaged in illegal activity. He argues that there is no connection such that it would be likely that evidence of criminal activity would be found at either location. The Master Affidavit, however, provided more information supporting the searches, and supplied the link to illegal activity. Specifically, it provided:

Multiple telephone calls evidence the fact that DIMORA regularly works from his home and typically travels to his office only on days that Cuyahoga County Commissioners' meetings are scheduled. DIMORA regularly has employees from his office deliver a folder containing mail, scheduling, and “call sheets” ⁴ to his home. After DIMORA reviews the items, those same employees pick up the folder and return the items to DIMORA's office.

As mentioned above, DIMORA's office paperwork is relevant to this investigation because it is evidence of the meetings, telephone calls, and faxes that DIMORA has had with individuals who have asked him to take official acts in exchange for something of value. Therefore, there is probable cause to believe that the work areas of the sources of that paperwork [including the work stations of other individuals identified therein] will contain documents relevant to the investigation.

(Curtis Master Aff. at 290–94.) This information clearly established that paperwork, along with records of calls, were flowing between Dimora's home and office. Moreover, the Master Affidavit provides that the work Dimora performed at his office allegedly included unlawful activity that advanced the conspiracy.⁵ As such, the Master Affidavit allowed a neutral magistrate to conclude that there was a “fair probability” that information involving illegalactivity would be found at Dimora's office.⁶

2. The Home Search

This same evidence supports a finding...