United States v. Pirk

282 F.Supp.3d 585

UNITED STATES of America,

v.David PIRK, Andre Jenkins a/k/a Little Bear, Timothy Enix a/k/a Blaze, Filip Caruso a/k/a Filly, Edgar Dekay, II a/k/a Ed a/k/a Special Ed, Jason Williams a/k/a Toop, Thomas Koszuta a/k/a Kazoo, Gregory Willson a/k/a Flip, Emmett Green, Robert Osborne, Jr., Stanley Olejniczak, Jack Wood a/k/a Jake a/k/a Snake, Ryan Myrtle, Glen Stacharczyck a/k/a Turbo, Defendants,Thomas Scanlon a/k/a Tom, and Sean McIndoo a/k/a Professor, Defendants–Appellants.

1:15–CR–00142 EAW

United States District Court, W.D. New York.

Signed October 18, 2017

Brendan T. Cullinane, Joseph M. Tripi, U.S. Attorney's Office, Buffalo, NY, Marianne Shelvey, U.S. Department of Justice/Organized Crime Section, Washington, DC, for United States of America.

Joseph A. Agro, Thomas J. Eoannou, Barry Nelson Covert, Herbert L. Greenman, Lipsitz Green Scime Cambria LLP, Michael S. Deal, DeMarie & Schoenborn, P.C., Terrence M. Connors, James W. Grable, Jr., Connors LLP, John Patrick Pieri, John Patrick Pieri, Esq., Emily P. Trott, Lori Ann Hoffman, Tully Rinckey PLLC, Kevin W. Spitler, Michael J. Stachowski, Lawrence J. Desiderio, Law Office of Lawrence Desiderio, Daniel C. Oliverio, Reetuparna Dutta, Patrick E. Fitzsimmons, Spencer Leeds Durland, Timothy W. Hoover, Hodgson Russ LLP, Mark J. Mahoney, Harrington and Mahoney, Buffalo, NY, Thomas F. Keefe, Williamsville, NY, Cheryl Meyers Buth, Meyers Buth Law Group PLLC, Orchard Park, NY, William T. Easton, Rochester, NY, A. Joseph Catalano, Niagara Falls, NY, Andrew D. Brautigam, Brautigam & Brautigam, LLP, Fredonia, NY, John J. Molloy, West Seneca, NY, Mehmet K. Okay, The Okay Law Firm, Batavia, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

The above-captioned matter involves 12 remaining defendants¹ named in a 46–count Second Superseding Indictment (Dkt. 33) ("Indictment") returned on March 16, 2016, alleging various crimes, including a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), in connection with the operation of the Kingsmen Motorcycle Club ("KMC"). This Decision and Order addresses the appeals of defendants Thomas Scanlon ("Scanlon") (Dkt. 615) and Sean McIndoo ("McIndoo") (Dkt. 616) (collectively "Defendants") from United States Magistrate Judge Michael J. Roemer's Decision and Order (Dkt. 568) that denied the motions to unseal an affidavit filed in August 2015, in support of search warrants for seven KMC clubhouses.² For the reasons set forth below, the Court affirms Judge Roemer's Decision and Order, and denies Defendants' requests to unseal the search warrant affidavit.

BACKGROUND

On December 7, 2016, Scanlon filed an omnibus pretrial motion, requesting, inter alia, the unsealing of the search warrant affidavit submitted in support of search warrants executed at seven KMC clubhouses. (Dkt. 385 at 33–37). On January 10, 2017, the Government responded in opposition to Scanlon's motion. (Dkt. 437). On February 3, 2017, Scanlon filed a reply. (Dkt. 476).

On December 7, 2016, McIndoo filed an omnibus pretrial motion. (Dkt. 383). On January 11, 2017, he moved to join in the motions of his co-defendants (including David Pirk ("Pirk") and Scanlon)³ to unseal the search warrant affidavit. (Dkt. 438). On January 20, 2017, the Government responded in opposition to McIndoo's motion for discovery. (Dkt. 454). McIndoo replied on February 3, 2017 (Dkt. 475), and the Government filed an additional response in opposition to the remainder of his pretrial motions on February 10, 2017. (Dkt. 492).

Oral argument concerning non-dispositive discovery motions was held on March 17, 2017, before Judge Roemer (Dkt. 536), to whom this Court referred certain pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) (Dkt. 35). On April 25, 2017, Judge Roemer issued a Decision and Order resolving the non-dispositive discovery motions. (Dkt. 568).

On May 10, 2017, this Court issued a Text Order requiring any appeals of MagistrateJudge Roemer's Decision and Order to be filed by May 30, 2017. (Dkt. 583). On May 30, 2017, Scanlon timely filed an appeal of Judge Roemer's Decision and Order. (Dkt. 615). On May 31, 2017, McIndoo filed his appeal. (Dkt. 616). The Government filed its memoranda in opposition to the appeals on June 28, 2017. (Dkt. 649 (Scanlon Opp.); Dkt. 651 (McIndoo Opp.)). Scanlon filed a reply in further support of his appeal on July 14, 2017 (Dkt. 675), followed by a notice of supplemental authority on July 19, 2017 (Dkt. 677). The Government filed a response to the supplemental authority on July 20, 2017, as well as a motion to strike the supplemental authority, which the Court denied. (Dkt. 683; Dkt. 687). McIndoo filed a reply on July 25, 2017. (Dkt. 694). Oral argument was held before the undersigned on August 16, 2017, at which time the Court reserved decision. (Dkt. 732).

DISCUSSION

Because Defendants appeal to this Court from a non-dispositive Decision and Order, in order to warrant reversal by this Court, they must demonstrate that the decision is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Feneziani, No. 05-CR-290E, 2007 WL 1613630, at *1 (W.D.N.Y. June 1, 2007) (quoting Garcia v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006) ). "This standard is highly deferential, imposes a heavy burden on the objecting party, and only permits reversal where the magistrate judge abused his discretion." Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 954 F.Supp.2d 127, 139 (E.D.N.Y. 2013) (quotations omitted); see also S.E.C. v. Verdiramo, 890 F.Supp.2d 257, 266 (S.D.N.Y. 2011) ("The clearly erroneous standard is highly deferential, and magistrate judges are afforded broad discretion in resolving non-dispositive disputes...." (quotation omitted)).⁴

Scanlon and McIndoo argue that the warrant affidavit must be provided under the Fourth Amendment. In addition, Scanlon contends that he is entitled to the affidavit under the First Amendment and the common law. The Court takes each argument in turn.

I. Fourth Amendment

Defendants seem to concede that standing is required to bring a Fourth Amendment challenge to the sealing of the underlying search warrant affidavit. (See Dkt. 615 at 17 (arguing that because Scanlon has standing, he has a Fourth Amendment right to examine the search warrant affidavit); Dkt. 616 at 16–21 (same as to McIndoo)). Indeed, Defendants present no caselaw that suggests that one who lacks standing to contest a search warrant still has a Fourth Amendment right to examine a search warrant affidavit. Standing is plainly a prerequisite to bringing a challenge pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). United States v. Tranquillo, 606 F.Supp.2d 370, 376 (S.D.N.Y. 2009) (citing United States v. Mastromatteo, 538 F.3d 535, 544 (6th Cir. 2008) ) (analyzing whether the defendant had standing to request a Franks hearing and to contest the legality of a search). In other words, to gain access to the search warrant affidavit pursuant to the Fourth Amendment, Defendants must have a legitimate Fourth Amendment right in the property searched—or, in other words, standing to challenge the searches of the clubhouses at issue.

Although the Second Circuit does not appear to have addressed whether there is a Fourth Amendment right to examine a search warrant affidavit, other federal courts have recognized such a right. See Rinaldi v. City of New York, No. 13 Civ. 4881(LAK)(JLC), 2014 WL 2579931, at *4 (S.D.N.Y. June 10, 2014) (citing out-of-circuit caselaw in support of notion that Fourth Amendment provides right to inspect affidavit to one who challenges the issuance of the warrant, but noting that the Second Circuit has not addressed the issue directly), report and recommendation adopted, 2014 WL 4626076 (S.D.N.Y. Sept. 15, 2014) ; see also United States v. Hawit, 15–cr–252 (PKC), 2017 WL 3016794, at *2 n.3 (E.D.N.Y. July 14, 2017) (citing Rinaldi for the proposition that the Second Circuit has not addressed whether there is a Fourth Amendment right to access search warrant materials).

In one such out-of-circuit case, In re Search Warrants Issued on April 26, 2004, 353 F.Supp.2d 584 (D. Md. 2004), the district court stated that "[t]he common law right of access to a search warrant affidavit by a newspaper"—discussed in detail below—"pales in comparison to the rights of a property owner subject to a search and seizure by government agents." Id. at 587. It reasoned that the right of access flows from the language of the Fourth Amendment itself:

By its plain words, the Amendment insulates the public from "unreasonable" intrusions and sets forth the specific requirement that search warrants be supported by probable cause. Implicit in that language is the public's right to challenge both the reasonableness of the search and the degree to which the warrant was supported by probable cause.

Without the right of access to the affidavit on which the search warrant was based, the search subject could never make such a challenge.

Id. at 588. "While the government is free to lawfully exercise its power to execute search warrants, the persons against whom that awesome power is unleashed at least have the right to discover the basis for the exercise." Id. at 590 ; cf. United States v. Oliver, 208 F.3d 211 (Table), 2000 WL 263954, at *2 (4th Cir. Mar. 9, 2000) (holding that right of defendant under Fourth Amendment to examine affidavit that supports a warrant is not absolute, and right of access may be denied where Government demonstrates a compelling governmental interest that requires the materials be kept under seal and there is no less restrictive means than sealing,...