US v. Whitty

• Decision Date: 19 May 1988
• Docket Number: Crim. No. 87-00054-B.
• Citation: 688 F. Supp. 48
• Parties: UNITED STATES of America v. Hugh F. WHITTY, Jr. and Hugh F. Whitty, III, Defendants.
• Court: U.S. District Court — District of Maine

688 F. Supp. 48

UNITED STATES of America v. Hugh F. WHITTY, Jr. and Hugh F. Whitty, III, Defendants.

Crim. No. 87-00054-B.

United States District Court, D. Maine.

May 19, 1988.

COPYRIGHT MATERIAL OMITTED

Thomas L. Goodwin, Asst. U.S. Atty., Augusta, Me., for plaintiff.

Harold Hamilton, Bangor, Me., N. Laurence Willey, Brewer, Me., for defendants.

MEMORANDUM AND ORDER

CYR, Chief Judge.

Before the court are defendant Hugh F. Whitty, Jr.'s Whitty Jr. motion to dismiss and defendant Hugh F. Whitty, III's Whitty III motion to dismiss; motion to quash any subpoenas for obtaining, and to enjoin the use or obtaining, of Whitty III's financial records; and motion to suppress.

FINDINGS OF FACT

1. The investigation of the crimes charged in this indictment began in February 1986. Specifically, on February 12, 1986, Special Agent James Sangillo of the Federal Bureau of Investigation FBI was assigned the case. The FBI had been contacted by a federal credit union official.

2. The initial complaint related to certain transactions at the Bangor Federal Credit Union BFCU and pertained to these defendants only.

3. Later, during the course of the investigation, Sangillo learned from Whitty Jr. that two other individuals had used an unposted account at BFCU to "float" checks for which sufficient funds were not available. At present the Government is not conducting a criminal investigation relating to these other individuals.

4. In February 1986, Whitty Jr. was dismissed as general manager of BFCU. Following Whitty Jr.'s dismissal, Whitty III believed that he was suspected of involvement in the alleged fraudulent scheme.

5. In or about February and April 1986, certain BFCU financial records relating to Whitty III and his business, Tiny Tot Diaper Service Tiny Tot, were turned over to federal investigators following an audit which revealed possible wrongdoing by the defendants. There was no search warrant or subpoena, and Whitty III did not consent.

6. After analyzing Whitty III's and Tiny Tot's financial records, Sangillo suspected that Whitty III had engaged in a fraudulent scheme.

7. On April 24, 1986, in the early afternoon, Sangillo and Detective Owen Colomb of the Maine Attorney General's office drove to Tiny Tot in Veazie, Maine. They did not call in advance, nor had any law enforcement official contacted Whitty III previously in connection with the alleged fraud scheme at BFCU.

8. Sangillo and Colomb parked in the driveway of Tiny Tot, but did not block the driveway or Whitty III's vehicle. They entered the Tiny Tot building through the customer entrance. Both Sangillo and Colomb were in street clothes.

9. When Sangillo and Colomb entered the building, there was a young woman behind the service counter, and Whitty III's wife was also present. No customers were present, although Tiny Tot was open for business. Sangillo and Colomb asked to see Whitty III.

10. Whitty III promptly appeared in the customer reception area. Sangillo identified himself as an FBI agent and asked Whitty III if there was a more private area in which to talk. Whitty III determined to take the officers to the second floor.

11. As soon as he learned that they were law enforcement officials, Whitty III suspected that Sangillo and Colomb were there in connection with the alleged fraud scheme at BFCU. He himself preferred to repair to a more private place for the ensuing discussion.

12. Whitty III previously had considered contacting an attorney, upon learning some weeks earlier that his father, Whitty Jr., had been discharged by BFCU.

13. After Sangillo and Colomb identified themselves as law enforcement officials, Whitty III led Sangillo and Colomb through an open doorway, located behind the customer service counter, and up a spiral staircase to an unfinished second floor room. The staircase was not enclosed, and there was no door at the top or bottom of the stairs. The first floor was not visible from the second floor room, but sound from the first floor could be heard in the second floor room.

14. Not far from the doorway at the top of the staircase was an unopened stove crate. Whitty stopped beside the crate — roughly opposite, and facing, the staircase. Sangillo stood on the side of the crate to the left of Whitty III, and Colomb stood across from Whitty III with his back to the staircase.

15. The second floor was well lighted, by sunlight and artificial light.

16. Sangillo initiated the interview by stating that he was investigating a problem at BFCU and that an audit indicated that Whitty III may have been involved in a scheme to defraud BFCU. During Sangillo's initial remarks, Sangillo showed Whitty III schedules obtained by the FBI from BFCU officials relating to activity in Whitty III's personal account and Tiny Tot's business account at BFCU between September 1983 and February 1986. The schedules reflected certain correlations between the transactions in the two accounts, by date and amount.

17. Immediately after Sangillo completed his initial remarks, Whitty III admitted his involvement in the scheme. Whitty III was hopeful that his early cooperation would be recognized by the authorities, and he felt at the time that he wanted to get the matter behind him.

18. Within the first ten minutes of the interview, Sangillo asked whether Whitty III had an attorney. Whitty III was never given Miranda warnings by Sangillo or Colomb. Whitty III knew that he had the right to an attorney, but he did not request one.

19. After Whitty III admitted his involvement in the scheme, Sangillo and Colomb showed him other financial records obtained from BFCU — including bank statements pertaining to Whitty III's personal account and the Tiny Tot account — and asked him to clarify certain dollar amounts.

20. Sangillo did most of the questioning during the interview. Colomb actively questioned Whitty III only with regard to the dollar amount involved in an October 1983 transaction.

21. During the interview, Sangillo and Colomb were calm. They did not coerce or intimidate Whitty III in any way. Whitty III was neither told that he was free to go, nor that he was not free to go.

22. Sangillo, Colomb and Whitty III stood around the stove crate throughout the interview. The interview was never interrupted by any other person. There was no break in the interview, no offer by Sangillo or Colomb to take a break, and no indication by Whitty III that he wished to take a break or otherwise interrupt or suspend the interview.

23. During the interview, Whitty III appeared remorseful, and he willingly, cooperated with Sangillo and Colomb by answering all of their questions.

24. Sangillo took notes during the interview. At Sangillo's request, Whitty III reviewed the notes, but he did not sign or initial them.

25. The interview lasted between one and one and one-quarter hours.

26. The interview ended when Sangillo stated that he was going to give the information he had obtained to the United States Attorney and that it was up to Whitty III what action Whitty III should take. At that point, it became apparent to Whitty III that he would not be arrested or detained at that time.

27. Whitty III had no criminal record; there were no charges against him; and he was not under arrest.

28. After the interview, Whitty III escorted Sangillo and Colomb downstairs, and he remained in the building as they left.

29. Following their departure from Tiny Tot, Sangillo and Colomb proceeded to Whitty Jr.'s home to interview him. They had not interviewed Whitty Jr. at any time prior to their interview of Whitty III.

30. The FBI conducted no further field investigation of the alleged fraud scheme after these interviews of the defendants. The defendants were not indicted until October 27, 1987.

MOTION TO DISMISS

The defendants contend that the federal bank fraud statute, 18 U.S.C. § 1344, is an ex post facto law, as applied to them, because the indictment alleges criminal activity beginning in September 1983, whereas the statute did not become effective until October 12, 1984. In addition, Whitty III argues that the statute is unconstitutionally overbroad and vague; that the Government is selectively prosecuting the defendants; and that the pre-indictment delay violates Whitty III's due process rights.

Ex Post Facto Clause

The defendants argue that the indictment must be dismissed because it alleges a scheme to defraud BFCU from September 1983 to February 1986, without specifically alleging that any act in violation of 18 U.S.C. § 1344 occurred after the effective date of the statute. Consequently, the defendants argue, the grand jury may have indicted them solely on the basis of activity predating the effective date of the statute.¹ The court treats the motion as a motion to dismiss the entire indictment and, alternatively, as a motion to strike those portions of the indictment which allege violations of 18 U.S.C. § 1344 occurring prior to October 12, 1984.

The Ex Post Facto Clause of the United States Constitution, U.S. Const., art. I, § 9, cl. 3, prohibits the enactment of

any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." ... Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.

Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26, 18 L.Ed. 356 (1867)). For a law to be ex post facto, "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver, 450 U.S. at 29, 101 S.Ct. at 964. See also Breest v. Helgemoe, 579 F.2d 95, 102 (1st Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978).

Although the ex post facto clause expressly restricts...