The opinion of the court was delivered by: COOLAHAN
Defendant Giresi is charged in this four-count indictment with violations of federal firearms statutes, 26 U.S.C. §§ 5861(d), 5861(i), 5871,
namely, possession of two firearms silencers, both unregistered and lacking the requisite serial numbers. These two silencers were seized from defendant's residence on July 12, 1978 pursuant to a search warrant issued that same day.
Presently before the Court is defendant's omnibus pretrial motion, Rule 12(b), F.R.Crim.P. Defendant moves that the Court: (1) dismiss the indictment; and (2) suppress the evidence seized from defendant's residence pursuant to the July 12, 1978 search warrant,
or, alternatively, if suppression is initially denied, that a hearing on the veracity of material representations in the warrant affidavit is then required, see, Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Only the suppression motion warrants textual discussion.
Defendant's motion questions the validity of the July 12, 1978 search warrant for defendant's residence. This warrant is founded entirely upon a 17-page search warrant affidavit of the same date, propounded by Special Agent Bopp of the Bureau of Alcohol, Tobacco and Firearms and Special Agent Luksic of the United States Customs Service. The joint affiants related personal observations garnered during their separate, lengthy undercover investigations of a number of individuals apparently engaged in even more numerous suspected unlawful activities. Fairly read, the affidavit depicts facts indicative of an informal criminal operation centered in and around the Truck Haven Rest, a restaurant and bar in this District. At least three different types of criminal activities, the affidavit relates, regularly occurred at the situs Bar: purchases and sales of stolen property ("fencing"); illegal firearms transactions (gun dealing); and extortionate credit transactions ("loan-sharking").
Defendant Giresi is mentioned, however, in only the following three portions of the affidavit:
(The Truck Haven Rest or) Bar is operated by George Weingartner, who utilizes the office space in the northeast portion of the first floor of the Bar. The liquor license, however, reflects that Jack Giresi and Christina Weingartner, wife of George are the owners.
On June 21, 1978, pursuant to prior discussions, Weingartner delivered to your Affiant (Bopp) in his office as aforesaid, one box of Remington .38 caliber match ammunition and one box of Winchester 9 mm. luger ammunition which he had concealed in his file cabinet. Subsequently, on July 7, 1978, Your Affiant met with George Weingartner and Jack Geresi (also spelled Giresi above). They requested Your Affiant to locate a third party, apparently in efforts to collect on some $ 8,000 worth of stolen property which was delivered by a New York suspect to the third party for purposes of fencing, which resulted in the third party failing to meet his obligations. Your Affiant advised Weingartner and Geresi that Your Affiant had no responsibility for the actions of the third party, after which Your Affiant paid Weingartner $ 19 for the ammunition purchased in the office on June 21, 1978. Weingartner indicated to Geresi during that conversation in the office that Your Affiant was the one who had purchased Geresi's ammunition. Your Affiant Luksic knows Geresi to be a co-owner with Weingartner of the Truckers Haven Bar and has visited Geresi's residence . . . during April of this year, at which time Your Affiant noted the presence of stereo speakers similar to the stolen stereo speakers sold to Your Affiant by Weingartner as previously described.
Search Warrant Aff., 2-3, 11. The stereo speakers transaction was earlier described in the affidavit: "On April 11, 1978 Weingartner and (another named suspect) sold Your Affiant Luksic two stolen stereo speakers for $ 40.00." Id. at 3.
Much of defendant's argument implicitly rests upon the arguable absence of any direct evidence against defendant Giresi. Defendant asserts that the magistrate's July 12, 1978 finding of probable cause to search defendant's residence is erroneous for several reasons: (1) the affidavit, he alleges, does not relate any facts establishing that firearms, ammunition or stolen property would be found at that time in Giresi's residence; (2) the June 21, 1978 conversation between Agent Bopp, Weingartner and Giresi is vague and confusing, and, in any event, is not probative of the likelihood of evidence then being present in defendant's residence; and (3) the allegation that Agent Luksic notice (otherwise undescribed) stereo speakers "similar to" those suspected stolen speakers earlier sold to him also does not bear on the presence of probable cause to search Giresi's residence for stolen property.
He alternatively argues that the warrant did not particularly describe the objects sought.
The Government responds with several counter-arguments. Suggesting that defendant's reading of the warrant affidavit is hypertechnical, the Government urges that an alternative interpretation supports the magistrate's finding of probable cause to search Giresi's residence.
At the July 6, 1978 meeting at the Bar between Agent Bopp, Weingartner and Giresi, Weingartner stated to Giresi that Bopp had earlier purchased Giresi's ammunition. Less than two weeks later, on July 16, 1978, Weingartner told affiant Bopp that Weingartner had a constant source of illegal ammunition. Search Warrant Aff., 10-11. Bopp's subsequent purchase of such ammunition from a dealer to whom he was introduced by Weingartner's card and note tends to corroborate Weingartner's July 7th statement to Bopp.
The Government's first suggested approach does have some merit. However, we need not attempt to uphold this warrant solely on that basis. Instead, as the Government secondly suggests, we focus upon all the facts recited in the warrant affidavit, together with reasonable inferences thereof, in reviewing the magistrate's finding of probable cause that Giresi was: (1) associated in fact with a conspiracy to engage in an enterprise consisting of a pattern of racketeering activities, in violation of 18 U.S.C. § 1962 ("RICO statute"); and (2) a conspirator, in violation of 18 U.S.C. § 371, to violate the firearms statutes specifically described in the warrant.
Probable Cause to Search: Four Ingredients
Probable cause of course concerns probabilities, not absolute or near certainties. Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). Simply put, probable cause to search means such evidence as would persuade a person of reasonable caution to believe that an offense is or was committed and that evidence of assistance in securing the apprehension or conviction of the perpetrator is located in the place to be searched. See, e.g., United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820, 824, 46 L. Ed. 2d 598 (1976); Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782 (1967); United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684 (1965); Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). Probable cause to search is founded upon a logical nexus between "four ingredients: time; crime; objects; and place. . . ." 1 LaFave, W., Search & Seizure § 3.7 (1978) (hereinafter "LaFave"). The oft-difficult application of these ingredients belies the relative simplicity of the paradigm. This is demonstrated by our consideration of the interplay of the four ingredients as enumerated below. We need also decide whether or not the warrant described the objects sought with the requisite constitutional particularity.
The first question is whether the affidavit recites sufficient facts to enable the magistrate to find probable cause that there existed the two conspiracies enumerated on the face of the search warrant: the first to violate the RICO statute, 18 U.S.C. § 1962, and the second to violate the above federal firearms statutes. Affirmative answers are established by a brief review of the affidavit.
The warrant affidavit relates numerous facts depicting ongoing commissions of criminal offenses in and around the Truck Haven Rest.
Many of these acts fall within the statutory definition of "racketeering activities", 18 U.S.C. § 1961(1). For example, in excess of ten acts related in the affidavit are arguably indictable under either 18 U.S.C. § 659 (theft from interstate shipment) or 18 U.S.C. §§ 2314, 2315 (interstate transportation of stolen property). Facts are also recited which are indicative of a continuing loan-shark operation sited in a trailer immediately adjacent to the Truck Haven Rest. These facts are indicia of several violations of 18 U.S.C. §§ 892-894 (extortionate credit transactions). Inasmuch as more than two "racketeering activities" are alleged in the affidavit, it is probable that a "pattern of racketeering activities" existed, 18 U.S.C. § 1961(5). Taken together, these facts establish that there probably existed a conspiracy to engage in an enterprise, 18 U.S.C. § 1961(4), relating to a pattern of racketeering activities, 18 U.S.C. § 1961(5), in violation of 18 U.S.C. § 1962. See generally United States v. Elliott, 571 F.2d 880, 887-90 (5th Cir.), cert. denied sub nom., Delph v. United States, 439 U.S. 953, 99 S. Ct. 349, 58 L. Ed. 2d 344 (1978).
Facts are also related in the warrant affidavit which are indicative of the existence of a conspiracy, 18 U.S.C. § 371, to violate specific federal firearms statutes as described in the warrant; e.g., 18 U.S.C. § 922(a)(1) ("dealing without a license"); 18 U.S.C.App. § 1202(a)(1) ("felony possession"); 26 U.S.C. §§ 5861(d, e) ("unregistered firearms"). The affiants allege the commission of at least eight separate violations of federal firearms statutes, most of which involved habitues of the Truck Haven Bar and its adjacent trailer. In short, the affidavit recites facts which would convince even the skeptical of the likelihood that these named persons and others conspired to violate the above firearms statutes.
We therefore conclude that the requisite ingredient of "crime" is present, as there is probable cause to believe that there existed: (1) a conspiracy to violate the RICO statute; and (2) a conspiracy to violate the enumerated firearms statutes.
Nexus Between "Objects" and "Place"
We earlier indicated our doubt as to the existence of the requisite crime-objects-place nexus, absent probable cause that Giresi (or the occupant of the search situs) was either associated in fact with the conspiracy to violate the RICO statute or a conspirator to violate these firearms statutes. We now turn to consider whether the affidavit relates sufficient facts to support the magistrate's finding that Giresi was involved in the two conspiracies.
Apparently anticipating that we might chart this line, defendant attempts to deflect us off-course by his contention that "the affidavit on its face shows no probable meeting of the minds between Giresi and others concerning an overall criminal enterprise which implicates the man or his house. . . . At best, Giresi is being accused of "guilt by association', rather than participation in any coordinated criminal act." Defendant's Supplemental Memorandum 13-14. Although defendant's argument is superficially appealing, we nonetheless find it unpersuasive in the case at bar. Fair consideration of all the facts recited in the warrant affidavit, and the reasonable implications and inferences thereof, convinces this Court that the magistrate properly concluded that Giresi was personally involved in both of these conspiracies.
Giresi's position as a co-owner of the Truck Haven Rest, the operational hub of both conspiracies, is, without more, at least suggestive of his association in fact with the conspiracy to violate the RICO statute, 18 U.S.C. § 1962. While it would perhaps delve far into the realm of speculation to uphold the probable cause finding solely because of this fact, we need not decide that particular question today. This affidavit, taken as a whole, contradicts the otherwise equally plausible inference that Giresi might be a "silent" partner in the Bar, uninformed of the criminal activities regularly occurring there. It relates that "George Weingartner . . . conducts the fencing operation on a day-to-day basis, apparently working in conjunction with Jack Giresi." Search Warrant Aff., 2 (emphasis supplied). It would not be "apparent" to the undercover Government Agents frequenting the Bar and personally participating in its illegal firearms and stolen property transactions that Giresi worked with Weingartner on a daily basis unless the affiants had observed Giresi at the Bar on a regular basis. Although "(m)ere presence at the scene of a criminal offense does not (alone) support an inference of guilt," Newsom v. United States, 335 F.2d 237, 239 (5th Cir. ...