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
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
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.
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
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
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
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.
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."
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)).
The affidavit of FBI Agent Misner indicates that four other
FBI agents (Barenie,
Erickson, Hiller, and Kessler) reported to Misner. It is well
established that when police officers or governmental agents
report information to other officers or agents who set out the
information in an affidavit for a search warrant, the
Aguilar requirements for establishing veracity of the informant
and the basis of the informant's conclusions have been met.
United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13
L.Ed.2d 684 (1965); United States v. DeCesaro, 502 F.2d 604,
607 at fn. 6 (7th Cir. 1974). Thus, the FBI agents' links in
the hearsay chain are not defective.
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)
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
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
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
(1) Dennis Johnson was the assistant manager of
the Fair Plain Cinema 5 Theatre;
(2) The theatre was located in Benton Harbor,
(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
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 ...