US v. Henry
| Citation | 861 F. Supp. 1190 |
| Decision Date | 26 August 1994 |
| Docket Number | No. S 93 Cr. 690 (AGS).,S 93 Cr. 690 (AGS). |
| Parties | UNITED STATES of America, v. Leroy HENRY, Brian Young, Mark Esposito, Jeffrey Salgado, Shefton Hunter, Irwin Raymond Simmons, Chanel Harper, Herman Young Brown, Devin Paront, Frazer Daniel Lennard, Philip Franchina, and Robert Inglesias, Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Tom Clark, Asst. U.S. Atty., S.D.N.Y., U.S. Dept. of Justice, New York City, for U.S.
Maurice H. Sercarz, New York City, for defendant Devon Paront.
Labe M. Richman, New York City, for defendant Mark Esposito.
Dana L. Hanna, Brooklyn, NY, for defendant Shefton Hunter.
Robert J. Anello, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City, for defendant Chanel Harper.
Robert Gottlieb, Commack, NY, for defendant Leroy Henry.
Kenneth A. Paul, New York City, for defendant Brian Young.
BACKGROUND
The indictment before the Court, S 93 Cr. 690, charges twelve defendants under 28 U.S.C. § 371 with conspiracy to commit offenses including mail fraud in violation of 18 U.S.C. §§ 1341 & 2, and interstate transportation of stolen motor vehicles in violation of 18 U.S.C. §§ 2312 & 2. Indictment at ¶ 1. More precisely, the Government alleges that the named defendants unlawfully: 1) arranged leases of automobiles for persons with inadequate credit histories by creating leasing contracts that contained false and fraudulent information; 2) arranged financed contracts of sale of automobiles by submitting false and fraudulent information to the lienholders; 3) concealed the fact that the purchasing and leasing contracts contained false and fraudulent information; 4) caused certain mail matter to be delivered in order to obtain money and property by means of false and fraudulent pretenses; and 5) knowingly transported stolen motor vehicles in interstate commerce. Indictment ¶¶ 4-8, 9, 10, 11, 12, 13, 14 and 16.
Defendants Leroy Henry, Chanel Harper, Mark Esposito, Shefton Hunter, and Devon Paront have submitted various discovery and non-discovery motions to the Court. We divide defendants' motions by defendant and topic, and address each request below.
Henry has requested this Court to order the following relief: 1) disclosure of the Grand Jury minutes; 2) suppression of evidence, or, alternatively, a suppression hearing concerning evidence seized from defendant's place of employment, World Class Leasing, Inc. ("WCL"); 3) disclosure by the Government of all co-conspirator and co-defendant statements; 4) a pre-trial hearing to determine the admissibility of co-conspirator statements; and 5) the right to join in all motions made on behalf of the co-defendants. For the reasons set forth below, we deny Henry's motions in their entirety with the exception that he is permitted to join in the motions of his co-defendants.
Henry requests, pursuant to Fed. R.Crim.P. 6(e)(3)(C)(ii),1 that the Court direct the government to furnish his counsel with a transcript of the Grand Jury proceedings. The secrecy of the Grand Jury proceeding, however, is central to our criminal justice system. See, e.g., United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958) (). As a result, a party seeking disclosure of Grand Jury minutes in this Circuit confronts a stringent standard, namely, he must "show a particularized need that outweighs the government's strong interest in secrecy." United States v. Moten, 582 F.2d 654, 662 (2d Cir.1978) ().
Defendant Henry has not made this showing. He alleges conclusively that: (1) the Indictment might be based on insufficient evidence, specifically, founded excessively upon unreliable hearsay; and (2) the prosecutor might not have advised the Grand Jury that the testimony it heard was in fact hearsay evidence. As a threshold matter, we note that in light of the Supreme Court's recent decision in United States v. Williams, ___ U.S. ___, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), serious questions exist as to whether this Court even possesses the supervisory power to dismiss an indictment on the grounds advanced by Henry even were we to assume them to be true. In Williams, the Supreme Court restricted our use of supervisory powers to enforcement of standards of prosecutorial conduct explicitly drafted and approved by Congress, and admonished against efforts by trial courts to use these powers as a means of prescribing such standards, id., ___ U.S. at ___ - ___, 112 S.Ct. at 1741-42; therefore, doubt surrounds Henry's capacity to base a motion to dismiss the indictment on the grounds upon which he justifies disclosure of the Grand Jury minutes. In this Circuit, moreover, it is well-established not only that "an indictment if valid on its face, may not be challenged on the ground that it is based on inadequate evidence,." United States v. Casamento, 887 F.2d at 1182 but also that a defendant's mere speculation as to what occurred in front of the Grand Jury does not warrant inspection of the minutes by defense counsel. See United States v. Wilson, 565 F.Supp. 1416, 1436 (S.D.N.Y.1983); United States v. Abrams, 539 F.Supp. 378, 389 (S.D.N.Y.1982) (); United States v. McGrath, 459 F.Supp. 1271, 1273 (S.D.N.Y. 1978) (); 8 J. Moore, Moore's Federal Practice, Rules of Criminal Procedure, ¶ 6.053, at 6-141-42 (February 1992) ().
Finally, the Court has reviewed the Grand Jury minutes in camera, and finds no evidence to support Henry's request. In our view, the evidence presented at the proceedings was not unreliable, and the prosecutor provided a clear explanation to the jurors regarding the presentation of hearsay evidence and the Grand Jury's right to request firsthand testimony. Accordingly, for all of the foregoing reasons, we deny Henry's motion for disclosure of the Grand Jury minutes.2
Henry also seeks suppression of the evidence seized from the WCL office pursuant to a search warrant. Henry poses two alternative reasons for suppressing the evidence, namely: 1) the search warrant was invalid because the affidavit supporting the warrant failed to provide sufficient probable cause; and 2) the search warrant was invalid because it was vague and overbroad.
In this Circuit, it is well established that a search warrant is properly supported by probable cause when the "totality-of-the-circumstances" indicate a probability that: 1) criminal activity exists; and 2) evidence of such activity will be found at the location to be searched. see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d. 527 (1983); U.S. v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990); U.S. v. Millan-Colon, 836 F.Supp. 1007, 1017 (S.D.N.Y.1993). This is a "flexible and common-sense standard," Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983), which the Court must apply in a practical light. See Gates, 462 U.S. at 241, 103 S.Ct. at 2333.
In our view, the affidavit supporting the search warrant satisfies the foregoing "totality of the circumstances" test, establishing a strong probability that criminal activity existed and that evidence of that activity was located at the WCL office. This affidavit, consisting of the testimony of Special Agent Kevin J. White of the Federal Bureau of Investigation, drew from information that he had received from Irwin Raymond Simmons, cooperating witnesses and victims. Affidavit of Special Agent Kevin J. White ¶ 2. These sources confirmed that: 1) Simmons was involved in a scheme whereby he would create false documents, sometimes through the use of credit information of unsuspecting individuals, in order to obtain cars for persons with bad or no credit; and 2) Simmons would send, via facsimile, fraudulent documents related to this scheme to the WCL office. Id, ¶¶ 2-4, 5. This information provides ample probable cause to support a search of WCL.
We note, moreover, that in reviewing determinations of probable cause, this Court owes substantial deference to the Magistrate Judge's finding. U.S. v. Feliz-Cordero, 859 F.2d 250, 252 (2d Cir.1988); see also Rowell, 903 F.2d at 902 () (citations omitted); United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983) (). Such deference is particularly justified here, where the Magistrate Judge not only reviewed the Government's evidence, but required the Government to specify additional sources of its information. See Gov't Mem. at 15 ().
In light of the foregoing, we decline to set aside the search warrant for the WCL office on the ground of insufficient probable cause.
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