Opinion
CRIMINAL ACTION DOCKET NO. CR-11-573
04-10-2012
STATE OF MAINE v. AMANDA SALISBURY, Defendant
ORDER ON DEFENDANT'S MOTION TO DISMISS INDICTMENT
The defendant moves to dismiss the indictment. The defendant argues that because a grand jury subpoena issued for her confidential banking records from the Savings Bank of Maine without her knowledge and without compliance with M.R. Crim. P. 17(c), the indictment must be dismissed. For the following reasons, the motion is denied.
Pursuant to section 163, it is clear that in criminal proceedings the customer need not be notified when bank records are subpoenaed:
The court for good cause shown may delay or dispense with service of the subpoena, summons, warrant or court order upon the customer. The court shall delay or dispense with service of the subpoena, summons, warrant or court order upon the customer upon notice by the Attorney General, the Attorney General's designee or the District Attorney that service upon the customer would not be in the public interest. A subpoena, summons or warrant issued in connection with a criminal proceeding or state or federal grand jury proceeding . . . need not be served on the customer.9-B M.R.S. § 163 (2011). Additionally, the Law Court has noted that violation of section 163 does not lead to an exclusion of evidence: "Even if we assume that the State did not comply with § 163, we would be disinclined at this time to apply an exclusionary rule. Section 163 does not mandate such a rule, and there is not the slightest suggestion on the facts here that such a rule is necessary to deter unlawful governmental conduct." State v. Fredette, 411 A.2d 65, 67 n.4 (Me. 1979); see also Porter v. Norway Sav. Bank, 2011 Me. Super. LEXIS 15, *4 (Feb. 23, 2011) (subpoena requesting certain financial records that was issued in connection with a grand jury proceeding was found to be lawful on its face; the subpoena did not have to be served on the customer before the Bank acted and did not have to certify that it had been served).
The subpoenaed records are not protected from disclosure by a "privilege, confidentiality protection or privacy protection." M.R. Crim. P. 17(d). Accordingly, the Rule 17(d) procedure was not required.
The entry is
The Motion to Dismiss Indictment is DENIED.
____________
Nancy Mills
Justice, Superior Court
STATE OF MAINE
VS
AMANDA J SALISBURY 53 9 ROME ROAD ROME ME 04963
DOB: 02/25/1980
Attorney: WALTER MCKEE
MCKEE LAW PA
PO BOX 258
RETAINED 09/01/2011
Filing Document: INDICTMENT
Filing Date: 07/28/2011
Charge(s)
1 THEFT BY UNAUTHORIZED TAKING OR TRANSFER 08/01/2006 OAKLAND Seq 8424 17-A 353 (1) (B) (1) Class B
SUPERIOR COURT
KENNEBEC, SS.
Docket No AUGSC-CR-2011-00573
DOCKET RECORD
State's Attorney: EVERT FOWLE
Major Case Type: FELONY (CLASS A,B,C)
Docket Events:
07/29/2011 FILING DOCUMENT - INDICTMENT FILED ON 07/28/2011
TRANSFER - BAIL AND PLEADING GRANTED ON 07/28/2011
TRANSFER - BAIL AND PLEADING REQUESTED ON 07/28/2011
07/29/2011 BAIL BOND - $1,000.00 CASH BAIL BOND SET BY COURT ON 07/28/2011
JOHN NIVISON , JUSTICE
07/29/2011 Charge(s): 1
WARRANT - ON COMP/INDICTMENT ORDERED ON 07/28/2011
JOHN NIVISON, JUSTICE
07/29/2011 Charge(s): 1
WARRANT - ON COMP/INDICTMENT ISSUED ON 07/08/2011
CERTIFIED COPY TO WARRANT REPOSITORY
08/05/2011 Charge(s): 1
WARRANT - ON COMP/INDICTMENT RETURNED ON 08/05/2011
08/08/2011 BAIL BOND - $1,000.00 CASH BAIL BOND FILED ON 08/03/2011
Bail Receipt Type: CR
Bail Amt: $1,000
Receipt Type: CK
Date Bailed: 08/03/2011 Prvdr Name: AMANDA SALISBURY
Rtrn Name: AMANDA SALISBURY
08/08/2011 Charge(s): 1
HEARING - ARRAIGNMENT SCHEDULED FOR 11/15/2011 at 08:30 a.m.
09/01/2011 Party(s): AMANDA J SALISBURY
ATTORNEY - RETAINED ENTERED ON 09/01/2011
Attorney: WALTER MCKEE
10/07/2011 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 10/07/2011
DA: WALTER MCKEE
10/07/2011 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 10/07/2011
Attorney: WALTER MCKEE
10/13/2011 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 10/07/2011
10/18/2011 OTHER FILING - OTHER DOCUMENT FILED ON 10/13/2011
DA: ALAN KELLEY
STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS
11/15/2011 Charge(s): 1
HEARING - ARRAIGNMENT HELD ON 11/15/2011
M MICHAELA MURPHY , JUSTICE
Reporter: JANETTE COOK
Defendant Present in Court
READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS
11/15/2011 Charge(s): 1
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 11/15/2011
11/15/2011 Charge(s): 1
TRIAL - DOCKET CALL SCHEDULED FOR 01/03/2012 at 08:30 a.m.
11/15/2011 HEARING - MOTION TO DISMISS SCHEDULED FOR 01/03/2012 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
11/15/2011 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 01/03/2012 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
11/15/2011 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 01/03/2012 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
01/03/2012 HEARING - MOTION FOR DISCOVERY NOT HELD ON 01/03/2012
01/03/2012 HEARING - MOTION TO SUPPRESS NOT HELD ON 01/03/2012
01/03/2012 HEARING - MOTION TO DISMISS NOT HELD ON 01/03/2012
01/03/2012 Charge(s): 1
TRIAL - DOCKET CALL HELD ON 01/03/2012
M MICHAELA MURPHY, JUSTICE
Defendant Present in Court
01/03/2012 MOTION - MOTION TO SUPPRESS WITHDRAWN ON 01/03/2012
01/03/2012 MOTION - MOTION FOR DISCOVERY GRANTED ON 01/03/2012
M MICHAELA MURPHY, JUSTICE
Defendant Present in Court
COPY TO PARTIES/COUNSEL
01/03/2012 HEARING - MOTION TO DISMISS SCHEDULED FOR 01/04/2012 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
01/04/2012 HEARING - MOTION TO DISMISS HELD ON 01/04/2012
M MICHAELA MURPHY, JUSTICE
Defendant Present in Court
01/04/2012 MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 01/04/2012
M MICHAELA MURPHY, JUSTICE
AFTER HEARING JUSTICE MURPHY RECUSED FROM THIS CASE
01/25/2012 OTHER FILING - OTHER DOCUMENT FILED ON 01/25/2012
Attorney: WALTER MCKEE
COPY OF ORDER IN STATE VS KAILE WARREN REGARDING THE MOTION TO DISMIS FILEDIN THIS MATTER.
02/08/2012 NOTE - OTHER CASE NOTE ENTERED ON 02/03/2012
M MICHAELA MURPHY, JUSTICE
RECUSED HERSELF
02/08/2012 HEARING - MOTION TO DISMISS SCHEDULED FOR 03/07/2012 at 10:00 a.m.
NOTICE TO PARTIES/COUNSEL
02/08/2012 HEARING - MOTION TO DISMISS NOTICE SENT ON 02/08/2012
03/07/2012 HEARING - MOTION TO DISMISS HELD ON 03/07/2012
NANCY MILLS , JUSTICE
Attorney: WALTER MCKEE
DA: PAUL RUCHA
Defendant Present in Court
TAPE#1506, INDEX#2050
03/07/2012 Charge(s): 1
MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 03/07/2012
NANCY MILLS, JUSTICE
04/11/2012 Charge(s): 1
MOTION - MOTION TO DISMISS DENIED ON 04/10/2012
NANCY MILLS, JUSTICE
COPY TO PARTIES/COUNSEL
04/11/2012 MOTION - MOTION TO DISMISS DENIED ON 04/10/2012
NANCY MILLS, JUSTICE
COPY TO PARTIES/COUNSEL
04/20/2012 Charge(s): 1
TRIAL - DOCKET CALL SCHEDULED FOR 06/05/2012 at 08:30 a.m.
A TRUE COPY
ATTEST:
Clerk