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UNITED STATES v. STEVENS

July 19, 1982

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL STEVENS, DAN COTSIRILOS, JOHN P. HECK, AND DAVID SHLAGMAN, DEFENDANTS.



The opinion of the court was delivered by: Hart, District Judge.

  MEMORANDUM OPINION AND ORDER

The defendants Michael Stevens, Dan Cotsirilos, John P. Heck, and David Shlagman were named in a four-count indictment returned by the February 1982 Grand Jury. Each was charged with receiving two stolen motion pictures, "Raiders Of The Lost Ark" and "On The Right Track", in violation of 18 U.S.C. § 2315 and 2, and infringing the copyrights of these two films in violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2.

Defendants Stevens, Cotsirilos, and Shlagman each have filed a number of pretrial motions. Defendants Heck and Stevens have filed general motions to adopt the pretrial motions and briefs filed by their codefendants.

The Court has previously denied the motions to sever. In this Memorandum Opinion and Order, the Court rules on the following motions: (1) motions to suppress evidence seized pursuant to a search warrant; (2) motions to suppress statements; (3) Stevens' motion to dismiss the indictment; (4) Cotsirilos' motion to dismiss the indictment (adopted by his codefendants); (5) motions for a bill of particulars; and (6) motions for production of exculpatory material (including Stevens' motion to produce evidence concerning inducements, promises and compensation to prospective government witnesses).

I. Motions to Suppress Evidence

The defendants have filed motions to suppress evidence seized pursuant to a search warrant issued by Magistrate Sussman on June 11, 1981, and executed on the same date. Pursuant to this warrant, prints of the movies "Raiders Of The Lost Ark" and "On The Right Track", as well as an assortment of video cassette recorders, tapes, and film materials, were seized.

Shlagman, Cotsirilos, and Heck affirmatively state that they have "standing" to challenge the legality of the search warrant, while the government contests their "standing" to raise this defense. For the reasons stated below, the Court finds that Cotsirilos, Shlagman, and Heck lack the capacity to challenge the legality of the search warrant. Their motions to suppress are denied.

Stevens also claims "standing" to challenge the legality of the search warrant, which right the government does not contest. The Court finds that Stevens has capacity to challenge the warrant, but denies his motion to suppress as well.

  A.  Legal Capacity of Cotsirilos, Shlagman, and Heck to
      Challenge the Search Warrant

These three defendants state that the evidence seized as a result of the search at 531 Wrightwood, Elmhurst, Illinois, included "one or two of the defendants' video recorders," that they were playing cards with friends in a "once a week game" at the location searched (which they state was owned by their codefendant Stevens), and that pursuant to Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), they have "standing" to challenge the sufficiency of the search warrant.

In Rakas v. Illinois, supra, the Court rejected the analysis of "standing" as the measure of the legal capacity to assert, by way of a motion to suppress evidence, the protection of the Fourth Amendment. The Court stated that in order to challenge the legality of a search warrant, a defendant must allege that his "legitimate expectation of privacy" was violated by the search. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

These defendants, who played cards once a week at Stevens' place of business, cannot be said to have had a legitimate expectation of privacy in the premises searched. They have alleged no right to exclude others from this location, no right to use the premises in Stevens' absence, the possession of no key, nor the presence of clothes, books, food, or anything else even arguably creating a legitimate expectation of privacy in the premises searched. Cf. United States v. Swart, 679 F.2d 698 (7th Cir. 1982) (legitimate expectation of privacy in defendant's place of business, allowing defendant to challenge warrantless search); United States v. Posey, 663 F.2d 37 (7th Cir. 1981), cert. denied ___ U.S ___, 102 S.Ct. 1473, 71 L.Ed.2d 679 (1982) (defendant driving his wife's car had legitimate expectation of privacy in the car to contest warrantless search); and United States v. Lupo, 652 F.2d 723 (7th Cir. 1981) (no legitimate expectation of privacy in trunk of codefendant's car). The fact that one or two video recorders owned by some of these defendants were present at the location searched does not by itself give them legal capacity to challenge the search. The "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), seemingly relied on here by these defendants, was rejected and Jones overruled by United States v. Salvucci, supra. Thus the motions of Cotsirilos, Shlagman, and Heck to suppress the evidence seized, and their derivative motions to suppress statements made after the search, under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), are denied.

B. Stevens' Challenge of the Search Warrant

At the outset, the Court must state that the question of the existence of probable cause presented by the affidavit in support of the application for the search warrant is a close question. However, after careful consideration of the affidavit in light of the applicable precedent, the Court finds that probable cause did exist, and therefore denies Stevens' motion to suppress.

1. The Affidavit

On June 11, 1981, at 3:03 a.m., Special Agent of the FBI, Kenneth R. Misner swore to an 11-paragraph affidavit presented to Magistrate Sussman. The first four paragraphs of the affidavit sketch out in broad form Misner's background with the FBI, including his work investigating alleged criminal violations of the copyright act, and a lengthy general description of the practice of unauthorized duplications and sales of copyrighted motion pictures.

The parts of the affidavit relevant to the present inquiry state:

  5. On June 9, 1981, at approximately 2:30 p.m., I
    received a telephone call from Ewing Layhew of
    the Film Security Office of the Motion Picture
    Association of America in Hollywood,
    California. He advised me that he is
    responsible for the investigation of illegal or
    bootleg reproduction of copyrighted films, and
    in that capacity he is familiar with those
    films which are copyrighted. The Film Security
    Office has previously provided me with accurate
    information concerning copyrighted material and
    films. During this conversation Layhew advised
    me that the film "Raiders Of The Lost Ark" is
    owned by Paramount Pictures Corporation and was
    published with requisite copyright notice and
    registration is pending.
  6. On June 10, 1981, Layhew advised me that on
    June 8, an anonymous telephone call was
    received by Joseph Mascaret, Vice President,
    Film and Videotape Security, Paramount
    Pictures, New York, New York, to the effect
    that the anonymous caller advised that Dennis
    Johnson, Assistant Manager at the Fair Plain
    Cinema 5 Theatre located in Benton Harbor,
    Michigan, planned to take a .35 millimeter
    print of "Raiders Of The Lost Ark" to be
    duplicated during the night of June 10 to June
    11, 1981, at a warehouse near the
    Indiana-Illinois border. The anonymous caller
    additionally advised that Johnson had
    previously transported films to this warehouse
    for duplication.
  7. Layhew stated that a contract exists between
    Paramount Pictures and the Fair Plain Cinema 5
    Theatre which states that the film "Raiders Of
    The Lost Ark" is to be used in the Fair Plain
    Cinema 5 Theatre from June 12, 1981 to July 10,
    1981, and that the theatre has no right to
    duplicate the film or to have screenings in any
    other locations.
  8. Robert Barenie, Special Agent of the Federal
    Bureau of Investigation assigned to the Benton
    Harbor, Michigan office of the FBI advised me
    that a Dennis Johnson was in fact the Assistant
    Manager at the Fair Plain Cinema 5 Theatre
    located at Fair Plain Plaza corner of M-139 and
    Napier Avenue, Benton Harbor, Michigan. Special
    Agent Barenie also advised that he is aware
    that the film "Raiders Of The Lost Ark" is due
    to begin showing at the theatre on June 12,
    1981, and that a print of that film is on hand
    at that theatre currently.
  9. Special Agent Barenie advised me that a
    physical surveillance was initiated at the Fair
    Plain Cinema 5 by Federal Bureau of
    Investigation Special Agents beginning at 11:00
    p.m. Detroit time June 9, 1981. Johnson was
    visually observed entering the Fair Plain
    Cinema 5 Theatre at approximately 4:00 p.m. on
    June 10, 1981, and subsequently left the
    theatre at approximately

    11:45 p.m. Johnson made two separate trips from
    the theatre to his automobile both of which
    times objects were taken from the theatre and
    placed in an automobile described as a 1978
    Chevrolet Camaro, Michigan license number PZH
    023. Johnson was under continual surveillance
    by James Hiller and Robert Kessler, Special
    Agents of the Federal Bureau of Investigation
    during his traveling from the Fair Plain Cinema
    5 Theatre to 531 W. Wrightwood, Elmhurst,
    Illinois.
  10. I was telephonically advised by Special Agent
    Wally Erickson of the Detroit FBI that Fred
    Behrends of the Film Security Office entered
    the Fair Plain Cinema 5 Theatre at
    approximately 12:15 a.m. on June 11, 1981 and
    determined that the movie "Raiders Of The Lost
    Ark" was missing from the theatre. The theatre
    manager Floyd Murphy advised that Johnson had
    no permission to take any film prints from the
    theatre, including "Raiders Of The Lost Ark".
    Behrends advised Erickson that the Film print
    number for the copy of "Raiders Of The Lost
    Ark" taken from the theatre is number 397.
  11. I was telephonically contacted by Special
    Agent Robert Barenie who provided the following
    description of the building entered by Johnson:
      A one-story brick industrial type building,
    beige in color with 3 windows and one door on
    the east side and a loading dock on the west
    side. The address of the north side of the
    building is 531 W. Wrightwood, Elmhurst,
    Illinois. The address is in gold colored
    letters and located on a stationary window
    above the entry door, which is constructed of
    glass and metal frame. A sign in front of the
    531 W. Wrightwood address indicates the
    business name Auvicom, Inc.

Since the affidavit rests in large part on the tip of an anonymous informant, the initial determination as to the existence of probable cause must be analyzed according to the standards set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The often-cited and quoted Aguilar test states: "Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was `credible' or his information `reliable.'" 378 U.S. at 114, 84 S.Ct. at 1514. Spinelli has termed this the Aguilar "two-pronged test."

2. Compounded Hearsay

The defendants first challenge the warrant on the grounds that the affidavit contains numerous hearsay statements from various sources which fail the Aguilar tests, though they cite no law to support such a position, and the government altogether fails to address it.*fn1

It has repeatedly been held that when the information presented in the affidavit is hearsay compounded upon hearsay, the length of the chain of the hearsay is not necessarily fatal: "Multiple hearsay is of course acceptable so long as the reliability and source of knowledge of each declarant is sufficiently shown." United States v. Finn, 502 F.2d 938, 941 (7th Cir. 1974) (citing United States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973) (en banc), and United States v. Wilson, 479 F.2d 936, 941 (7th Cir. 1973) (en banc)).

Three people connected with the film industry also provided information set forth in Agent Misner's affidavit. Ewing Layhew, of the Film Security Office of the Motion Picture Association of America in Hollywood, gave information to Agent Misner in telephone conversations on June 9, 1981, and June 10, 1981. In the conversation on June 10, 1981, Layhew told Misner of information received from an anonymous caller by Joseph Mascaret, Vice-President, Film and Video Tape Security, Paramount Pictures, in New York. In addition, Fred Behrends of the Film Security Office spoke to Floyd Murphy, the manager of the theatre in Benton Harbor from which the film "Raiders Of The Lost Ark" was allegedly taken, and Behrends communicated this information to FBI Agent Erickson who passed it along to the affiant, Agent Misner. Thus there is a question as to the adequacy under Aguilar of the statements made to the FBI agents by the three employees of the film industry.

The hearsay statements of Layhew, Mascaret, and Behrends may be found to meet the Aguilar tests in either of two ways. First, it should be noted that each worked for the security arm of the film industry. Their duties — investigating the theft or unauthorized duplication of copyrighted films — may be said to be nearly analogous to the roles of the FBI agents themselves, and therefore pursuant to United States v. DeCesaro, supra, they have met the Aguilar tests. Second, hearsay given to an affiant by persons in the ordinary course of fulfilling their business duties has been found acceptable under the Aguilar tests. See United States v. Rowell, 612 F.2d 1176 (7th Cir. 1980) (unnamed employee of American Express communicating information to named police informant found not inherently reliable; "basis" of the American Express employee's information was the normal course of business at American Express); United States v. Wilson, 479 F.2d 936 (7th Cir. 1973) (en banc).

Finally, the information communicated by theatre manager Floyd Murphy also is adequate under Aguilar. Murphy's information was given in the normal course of his business. See United States v. Rowell, supra; United States v. Wilson, supra. In addition, the report of a victim of a crime, such as Murphy here, satisfies the Aguilar standards. United States v. Burke, 517 F.2d 377, 380 (2nd Cir. 1975).

3. The Anonymous Informant's Tip Under Aguilar

The anonymous caller gave the following information to Mascaret on June 8, 1981:

  Dennis Johnson, Assistant Manager at the Fair
  Plain Cinema 5 Theatre located in Benton Harbor,
  Michigan, planned to take a .35 millimeter print
  of "Raiders Of The Lost Ark" to be duplicated
  during the night of June 10 to June 11, at a
  warehouse near the Indiana-Illinois border. The
  anonymous caller additionally advised that
  Johnson had previously transported films to this
  warehouse for duplication.

This tip fails to meet the Aguilar standards. The magistrate could not have determined whether the anonymous informant was credible or reliable, or whether the informant could have testified to facts within his*fn2 personal knowledge to show the basis for his bald conclusion that criminal activity was afoot.

Many courts have held, however, that the "veracity" and "basis of knowledge" prongs of the Aguilar tests may be satisfied by the corroboration of the information, and inferences fairly drawn from an examination of the details, provided by the informant.*fn3

a. The Veracity Prong

It is clear that the magistrate could not have adjudged the anonymous informer to have been credible based upon the information he supplied. His contact, Mascaret of the Film and Videotape Security Office of Paramount Pictures, did not attest to his veracity or reliability. There is no statement that in the past he provided information leading up to arrests and convictions, that he was a witness to or a victim of the crime, United States v. Burke, 517 F.2d 377 (2nd Cir. 1975), or that the information given was an admission against penal interest. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Where, however, there has been corroboration of many of the details given by the informant, demonstrating his truthfulness as to at least some of the information conveyed, it has been held that such corroboration shows that the informant is reliable within the meaning of Aguilar. See United States v. Marcello, 570 F.2d 324 (10th Cir. 1978); United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), cert. denied 411 U.S. 920, 93 S.Ct. 1546, 36 L.Ed.2d 313 (1973); and cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Although Draper was a case where the informer had a track record of reliability and provided numerous details describing the physical appearance of the defendant, Draper may also be read to stand for the proposition that the corroboration of many details provided by the informant may itself satisfy the veracity prong of the Aguilar test. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Unger, supra; Stanley v. State, supra 313 A.2d at 854 n. 3.

The FBI agents, through their own investigation, were able to corroborate the following information provided by the informant:

  (1) Dennis Johnson was the assistant manager of
      the Fair Plain Cinema 5 Theatre;
  (2) The theatre was located in Benton Harbor,
      Michigan;
  (3) The film "Raiders Of the Lost Ark" was
      present in the theatre sometime prior to
      12:15 a.m. on June 11, 1981;
  (4) During the night of June 10-11, 1981, Johnson
      drove from Benton Harbor, Michigan, to
      Illinois.*fn4

While it is true that the details corroborated by the agents were "innocent" details,*fn5 the corroboration is sufficient to satisfy the veracity prong of ...


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