The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is defendant's motion for an evidentiary
hearing pursuant to Franks v. Delaware. For the reasons set
forth below, the motion is denied.
On January 8, 2002, a Cook County Circuit Court judge issued a
warrant to search defendant Bruno Mancari's home. The warrant
application was supported by the affidavit of Cook County
Sheriff's Office Investigator Louis Schubrych and made in
connection with the investigation of the murder of Joseph Russo.
That same day, officers searched Mancari's home and recovered a
.38 caliber Derringer. Mancari was later charged with Russo's
murder and ultimately acquitted.
Mancari has since been indicted for being a felon in possession
of a firearm in violation of 18 U.S.C. § 922 (g) (1). This charge
is based on the gun found in Mancari's home during the execution of the search warrant on January 8, 2002. By his
present motion, Mancari seeks a hearing pursuant to Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) to
establish his claim that the affidavit submitted in support of
the search warrant was tainted by the intentional omission of
The affidavit identifies Schubrych, the affiant, as an
investigator assigned to the Russo murder case, and begins with
the following background information. Russo was murdered in April
1985. He was found in the trunk of his own car, and had been
beaten and stabbed to death. Russo had been out on bond on a
narcotics arrest and shortly before the murder had received a
federal grand jury subpeona for testimony regarding a criminal
investigation of Mancari. FBI Agent Wayne Zydron had told
Schubrych that Mancari was an auto dealer "linked" to an auto
theft ring and that Russo had been enlisted to obtain phony car
Schubrych's affidavit states that a James Palaggi had informed
Schubrych that Mancari had approached Palaggi and asked him to
kill Russo. Palaggi "declined this contract," and Mancari later
told him (Palaggi) that someone named "Murph" or "Murph the Surf"
would do the murder. Schubrych identified "Murph" as Harold
The affidavit states that from December 1995 through February
1996, Merryfield provided detailed information to both the FBI and state prosecutor Matt Mahoney regarding the Russo
murder.*fn1 Merryfield had been an "enforcer" for Mancari
paid to threaten and beat people since 1981. In March 1985,
Mancari approached Merryfield and asked him to beat Russo.
Merryfield agreed. On the arranged date, Mancari lured Russo to
Merryfield's mother's house by telling Russo that he (Mancari)
had lined up one of his customers to purchase cocaine from Russo.
Prior to Russo's arrival, Mancari and another man showed up at
the house and Mancari told Merryfield to leave because he would
not be needed for the beating. Merryfield left the house and when
he returned a couple of hours later, he found Mancari and the
other unidentified man standing over Russo's dead body. Mancari
said to Merryfield: "Clean this shit up and call me tomorrow."
Mancari and the other man then left. Merryfield then loaded the
body into the trunk of Russo's car and parked it in a public
parking lot. Merryfield found six ounces of cocaine in Russo's
sock, which Mancari later told him to keep as payment for
disposing of the body. Merryfield discarded a bloody hammer, but
kept two bloody knives because he thought his mother would notice
their absence. Merryfield "recently admitted" that a friend named
Peter Fisher helped him remove Russo's body from the house.
Fisher has been located and admitted the same.
The affidavit further states that Merryfield told Schubrych
that while he was in a Wisconsin state prison in 2001 (on an
unrelated charge) he was in contact with Mancari. Merryfield
would have his daughter, Tammy Merryfield, contact Mancari by
telephone, using the fictitious name "Joanne." Upon hearing from
"Joanne," Mancari would either visit Merryfield or write to him
using Tammy Merryfield's name as the sender and an old address of
Merryfield's mother as the return address. Prison officials
verified that Mancari had visited Merryfield on October 5, 2001
and that Merryfield had received a check for $500 on October 26,
2001. Some time later, Merryfield received another check for
The affidavit goes on to describe how, in cooperating with the
investigation, Merryfield and his daughter agreed to place a
recorded telephone call to Mancari for the purposes of arranging
another visit. On November 27, 2001, Mancari received a telephone
call from "Joanne" and agreed to visit Merryfield on November 30,
2001. Merryfield agreed to have the meeting recorded on audio and
video tape. During the recorded meeting between Mancari and
Merryfield, there were several references made to the Russo
murder investigation and Mancari agreed to send Merryfield $5,000
for his legal fees. They agreed that Mancari would send a money
order to Merryfield in prison by registered mail.
Approximately one week later, on December 6, 2001, a $5,000 bank check was sent to Merryfield in prison by certified mail.
The check was dated December 4, 2001 five days after Mancari's
visit and was enclosed in an envelope identifying Tammy
Merryfield as the sender and listing an outdated address of
Merryfield's mother. The face of the check did not indicate who
had actually paid for it. The check was drawn on the "First
Midwest Bank," which was located approximately one and a half
miles from one of Mancari's auto dealerships. Bank security
indicated that the check sent to Merryfield was part of a
multi-part form with two copies behind the original. These copies
are often kept by the sender as a personal receipt for the check
Based on the information in Schubrych's affidavit, state
investigators sought a warrant to search Mancari's home for:
"[A]ny official check receipts from the December 4, 2001
$5,000.00 check and any other check receipts or bank withdrawal
records mailed from Bruno Mancari to Harold Merryfield along with
any additional correspondence or financial transaction that Bruno
Mancari and Harold Merryfield may have had relative to the murder
of Joseph Russo."
A search warrant may only be issued upon a showing of probable
cause. See U.S. Const., amend. IV. An affidavit submitted in
support of a warrant establishes probable cause if it "sets forth
facts sufficient to induce a reasonably prudent person to believe that a search . . . will uncover evidence of a crime."
United States v. McNeese, 901 F.2d 585, 592 (7th Cir. 1990).
When deciding whether an affidavit supports a finding of probable
cause, "[t]he task of the issuing magistrate is simply to make a
practical, common sense decision whether, given all the
circumstances set forth in the affidavit before [said
magistrate], . . . there is a fair probability ...