Opinion
No. 04 Cr. 868 (LTS).
August 1, 2005
MEMORANDUM ORDER
Defendant, Steven Zoernack ("Zoernack"), moves to suppress all evidence seized following a search of the premises located at 124 Sand Dollar Lane, Sarasota, Florida 34242 ("the Premises"), pursuant to a search warrant issued by Magistrate Judge Mark A. Pizzo of the Middle District of Florida. The Defendant also moves to compel the Government to provide a bill of particulars. The Government opposes both motions. The Court has considered thoroughly all of the parties' submissions in connection with the motions. For the following reasons, Defendant's motions to suppress evidence and for a bill of particulars are denied.
BACKGROUND
Defendant is charged with fifteen counts of wire fraud in violation of 18 U.S.C. section 1343. On July 17, 2003, Mr. Pankaj Sharma, a Postal Inspector for the United States Postal Service, executed an affidavit ("Affidavit") for a search warrant of the Premises as explained in relevant detail below. The Affidavit presented information obtained from various sources, including complaining witnesses and documentary evidence, concerning Defendant's alleged illegal activities, and asserted that the Premises were likely to contain evidence of these activities. (Affidavit, annexed to Mot. to Supp. as Ex. A.) Based on the Affidavit, Magistrate Judge Pizzo issued a warrant on July 17, 2003, authorizing a search of the Premises. (Search Warrant, annexed to Mot. to Supp. as Ex. B.) The search, conducted on July 18, 2003, resulted in seizure of numerous items, including business records, computers, a computer disk, and written statements. (See Search Warrant Inventory, annexed to Mot. to Supp. as Ex. C.) Defendant, contending that the information proffered in the Affidavit was stale, seeks to suppress all of the seized evidence based on lack of probable cause for issuance of the search warrant. (Mot. to Supp., dated May 10, 2005, at ¶ 11.) Defendant also seeks a bill of particulars identifying the "`false and fraudulent pretenses, representations, and promises' allegedly made by Zoernack" in connection with the crimes charged in the fifteen-count Indictment. (Mot. for Bill of Part., dated May 10, 2005, at 1.)
ANALYSIS
Motion to Suppress Evidence
It is well established that a magistrate shall issue a search warrant only upon probable cause supported by an affidavit. U.S. Const. Amend. IV; Illinois v. Gates, 462 U.S. 213, 238 (1983). In determining probable cause, a magistrate "is simply to make a practical commonsense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 at 238; United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) ("To establish probable cause to search a residence, two factual showings are necessary — first, that a crime was committed and second, that there is probable cause to believe that evidence of such a crime is located at the residence."). In reviewing a probable cause determination, courts give substantial deference to the magistrate's findings and limit the inquiry to whether the magistrate had a substantial basis for finding probable cause. United States v. Singh, 390 F.3d 168, 181 (2d Cir. 2004).
Here, the warrant issued to search the Premises was supported by probable cause. Initially, the Affidavit proffers ample evidence that Zoernack defrauded numerous victims. The Affidavit provides detailed accounts of how Zoernack persuaded victims to send him money in exchange for promises of mortgages they never received. (Affidavit at ¶¶ 4, 8-14.) The Affidavit also presents information indicating that Zoernack defrauded third-party contractors by not paying them for services rendered. (Id. at ¶¶ 15-16.) Furthermore, the information presented in the Affidavit is sufficient to support a determination of probable cause to believe that the Premises were likely to contain evidence of Zoernack's criminal activity. The Affidavit proffers evidence that Zoernack lived at the Premises and had conducted business from his residence over a lengthy period of time. (Id. at ¶¶ 22-23.) Mail sent to Zoernack's company, "Wall Street Credit LLC," a mortgage broker and conduit lender purportedly located in New York City, was actually forwarded to the Premises. (Id. at ¶ 24.) Wall Street Credit conducted business through an internet site administered by Zoernack, and Zoernack, who conducted his business from the Premises, communicated frequently by email with his alleged victims. (Id. at ¶ 32.) These facts are sufficient to support a reasonable inference that the relevant business records pertaining to the fraud would be located at the Premises.
Contrary to Defendant's claim, the information in the affidavit was not stale. Defendant asserts "the information contained within the Affidavit was over two (2) years old" and "there are absolutely no allegations that any wire transfers or other allegedly criminal activity occurred at any time after March 29, 2001." (Mot. to Supp. at ¶¶ 6, 20.) This contention is factually incorrect. The Affidavit describes one victim who allegedly mailed Zoernack approximately $17,000 from December 2002 to February 2003. (Affidavit ¶ 14.) This person also allegedly had a conversation with Zoernack on July 16, 2003 repeating a request for a refund (Id.) Additionally, the Affidavit proffered that the website operated by Zoernack, "which directs viewers to contact Wall Street Credit and Zoernack by sending electronic mail" was in operation on July 16, 2003. (Id. at ¶ 32.)
However, even if the latest information in the Affidavit concerning specific alleged instances of fraudulent activity had been two years old, the warrant would not necessarily be invalid. Defendant's focus on whether the information presented to the Magistrate Judge was sufficient to support an inference of ongoing criminal activity is misplaced. Rather, where the validity of a search warrant is at issue, the question is whether the information in the affidavit is sufficient to establish a "fair probability" that evidence of criminal activity would be found at a particular place. The age of the information is relevant only in so far as it affects the likelihood that evidence will be found at the premises. In this case, the nature of the criminal enterprise (money transfers over a period of years), together with the kind of evidence to be seized (records pertaining to the fraudulent activity) and the nature of the Premises (home used as primary residence and principal place of business), support the conclusions that the items sought were of the type that would be kept over a period of years and that there was a fair probability that they could be found in the Premises.See United States v. Singh, 390 F.3d 168, 181-183 (2d Cir. 2004) (Search warrant based on twenty month old information held not stale because business records pertaining to defendant's long standing fraud activity would be kept over a period of years, and defendant was likely to keep records at his residence, so there was fair probability that evidence of fraud could be found in his residence.).
Defendant further argues "there is absolutely no information in this case from which the reviewing magistrate could determine the veracity of the unidentified persons supplying the critical hearsay information upon which the Affidavit is based." (Def. Mot. to Supp. at ¶ 14.) It is true that a magistrate issuing a warrant should consider "the `veracity' and `basis of knowledge' of persons supplying hearsay information." Illinois v. Gates, 462 U.S. 213, 238 (1983). In this case, however, the requisite indicia of the reliability of the statements were apparent on the face of the Affidavit. The statements were attributed to either alleged victims or witnesses and are therefore presumed reliable.United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975); United States v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990). Additionally, these statements were corroborated by other substantially similar statements as well as by external evidence. For example, the victims' description of Zoernack as an agent of Wall Street Credit was corroborated by the registration documents of the company and the company's website. (See Affidavit ¶¶ 4, 25.) The alleged transfers detailed by the victims were corroborated by the summary of bank records. (See Affidavit ¶ 17.) Accordingly, there was sufficient information in the Affidavit to enable the Magistrate Judge to make determinations concerning the veracity of the unidentified persons supplying the statements.
The information proffered in the Affidavit was neither stale nor otherwise insufficient to support the Magistrate Judge's determination that there was probable cause to authorize issuance of the search warrant. Accordingly, Defendant's motion to suppress the evidence seized in the search is denied.
Motion for Bill of Particulars
The purpose of a bill of particulars is to provide a defendant "with information about the details of the charge against him if this is necessary to the preparation of his defense, and to avoid prejudicial surprise at the trial." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (internal quotations omitted). "A bill of particulars should be required only where the charges in the indictment are so general that they do not advise the defendant of the specific acts of which he is accused." Id. (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987)). A bill of particulars, however, "is not a general investigative tool for the defense or a device to compel pretrial disclosure of the government's evidence." United States v. Ballesteros Gutierrez, 181 F.Supp.2d 350, 356 (S.D.N.Y. 2002). The Court has the discretion to deny a bill of particulars "`if the information sought by defendant is provided in the indictment or in some acceptable alternate form.'" United States v. Barnes, 158 F.3d 662, 665-666 (2d Cir. 1998) (quoting United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (per curiam)). "In exercising that discretion, the court must examine the totality of the information available to the defendant — through the indictment, affirmations, and general pre-trial discovery — and determine whether, in light of the charges that the defendant is required to answer, the filing of a bill of particulars is warranted." United States v. Bin Laden, 92 F.Supp. 2d 225, 233 (S.D.N.Y. 2000).
Zoernach's request to "compel the Government to identify any and all false and fraudulent statements" made as part of the alleged criminal scheme (Mot. for Bill of Part. at 5) is beyond the proper scope of a bill of particulars. In this case, the Indictment provides specific information for each allegedly fraudulent transaction, including the date, the amount in question, and the banks to and from which the money was transferred. (Indictment at 2.) See United States v. Mitlof, 165 F. Supp. 2d 558, 569-570 (S.D.N.Y. 2001) (rejecting motion for bill of particulars in fraud case as improper request for "`when,' `wheres,' and `with whoms'"). Additionally, the Affidavit in support of the search warrant, details how Zoernack allegedly defrauded his victims, including specific chronologies for particular victims. (Affidavit, ¶¶ 6, 8-20.) The Government also proffers that it has provided defense with 7,000 pages of discovery related to Zoernack's fraudulent scheme. (See Govt. Opp. at 11.) Together, these documents provide sufficient information of the details of the charges to enable Defendant and his counsel to prepare for trial and avoid unfair surprise.
CONCLUSION
For the foregoing reasons, Defendant's motions to suppress and for a bill of particulars are denied.
SO ORDERED.