Opinion
Criminal Case No. 1:05-CR-613-TWT.
June 21, 2006
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Rules LR 73 and LCrR 58.1. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), within ten (10) days after service of this order, each party may file written objections, if any, to the Report and Recommendation. Pursuant to Title 18, United States Code, Section 3161(h)(1)(F), the above-referenced ten (10) days allowed for objections is EXCLUDED from the computation of time under the Speedy Trial Act.
Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the District Court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729 (1984).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
SO ORDERED.
ORDER AND REPORT AND RECOMMENDATION
Pending before the court are Defendant Jurani Pinto's motion [Doc. 48] to strike surplusage from the indictment, Defendants Lucilene Dos Santos' and Pinto's motion [Docs. 50 and 52] to dismiss the indictment for constitutional vagueness, and Defendant Santos' motion [Doc. 56] to suppress evidence seized as the result of execution of federal search warrants.1. Motion to Strike
Defendant Pinto seeks to strike the word "young" from the indictment. The Government does not oppose the motion. [Doc. 89]. For this reason, the court GRANTS Defendant's motion to strike.
2. Motion to Dismiss the Indictment
Defendants Santos and Pinto seek to dismiss part of the conspiracy charged in Count One, Paragraph C of the Indictment and to dismiss Count Four of the Indictment both of which allege conduct in violation of 8 U.S.C. § 1328. Section 1328 provides in pertinent part, and as alleged in the Indictment:
The importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose, is forbidden. Whoever shall, directly or indirectly, import, or attempt to import into the United States any alien for the purpose of prostitution or for any other immoral purpose, or shall hold or attempt to hold any alien for any such purpose in pursuance of such illegal importation, or shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of illegal importation. . . .
[Emphasis added]. Defendants contend that the language for "any other immoral purpose" is unconstitutionally vague because it does not give notice of the conduct that subjects an individual to being charged with the offense and because it allows law enforcement authorities unfettered discretion in determining what type of conduct to charge. [Doc. 50]. The Government opposes the motion asserting that as applied to the facts of this case, that is, because Defendants' conduct falls within the prohibition against importation for the purpose of prostitution, the statute is not void-for-vagueness and that the portion of the statute, "for any other immoral purpose," which Defendants attack may be stricken as it adds nothing to the offense being charged in this case. [Doc. 88].
"The vagueness doctrine was developed by the Supreme Court of the United States as a `basic principle of due process.'" United States v. Vaghela, 970 F. Supp. 1018, 1020 (M.D. Fla. 1997) (quoting Grayned v. City of Rockford, 408 U.S. 104, 107, 92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222 (1972)). The doctrine "requires that a penal statute `define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" United States v. Marte, 356 F.3d 1336, 1342 (11th Cir. 2004) (citation omitted). Because Defendants are not raising First Amendment rights in their challenge to the statute at issue, the void-for-vagueness challenge is "evaluated in the light of the facts of the case at hand." Id. The more important aspect of the vagueness doctrine is "`the requirement that a legislature establish minimal guidelines to govern law enforcement.'" United States v. Fisher, 289 F.3d 1329, 1333 (11th Cir. 2002).
Defendants' attack on the "for any other immoral purpose" language in the statute focuses on the failure within the code to define what type of conduct falls within the scope of the language. Defendants then provide a litany of allegedly "immoral conduct" which might violate the statute to illustrate their point. [Doc. 50]. However, as early as 1908, the Supreme Court provided guidance on the scope of conduct that falls within the statutory prohibition at issue and, accordingly, resolves Defendants' challenge to the statutory language in this case.
In United States v. Bitty, 208 U.S. 393, 28 S. Ct. 396, 52 L. Ed. 543 (1908), the Supreme Court reviewed a dismissal of an indictment charging that the conduct in that case violated the prohibition of importing an alien for "any other immoral purpose." Noting that the statute "directed against the importation of an alien woman `for the purpose of prostitution or for any other immoral purpose,'" the Court applied the doctrine of ejusdem generis to give meaning to the latter phrase. Id. at ___, 28 S. Ct. at 400-01 (citation omitted) (emphasis in original). The Court first noted, "All will admit that full effect must be given to the intention of Congress as gathered from the words of the statute. There can be no doubt as to what class was aimed at by the clause forbidding the importation of alien women for purposes of `prostitution.'" Id. at ___, 28 S. Ct. at 401. The Court then observed that the addition of the words, "for any other immoral purpose," while made for "some practical object[,]" can only include conduct of the same class as the specifically identified conduct of prostitution. The court stated, "It may be admitted that, in accordance with the familiar rule of ejusdem generis, the immoral purpose referred to by the words `any other immoral purpose,' must be one of the same general class or kind as the particular purpose of `prostitution' specified in the same clause of the statute." Id. at ___, 28 S. Ct. at 401-02;see also Cleveland v. United States, 329 U.S. 14, 18, 67 S. Ct. 13, 91 L. Ed. 12 (1946) ("Under the ejusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it."); Hansen v. Haff, 291 U.S. 559, 562, 54 S. Ct. 494, 495, 78 L. Ed. 968 (1934) ("The principle of ejusdem generis limits the connotation of the words `any other immoral purpose' to such as are of the like character with prostitution. . . ."). The Supreme Court has defined the scope of conduct that violates the general language of the statute. This provides the necessary notice and restraint of official action. The statute is not unconstitutionally vague.
Moreover, as stated by the Government, as applied to the charges in this case, Defendants' alleged conduct falls within the confines of the specific prohibition against importation for the purpose of prostitution. [Doc. 88]. Because the Government has offered to strike the general language, "for any other purpose," the issue of whether that language is constitutionally vague as applied in this case is moot.
For these reasons, the court RECOMMENDS that Defendants' motion to dismiss the indictment for constitutional vagueness be DENIED.
3. Motion to Suppress Evidence
Defendant Santos seeks to suppress evidence seized as the result of the execution of two (2) federal search warrants executed at 1507 Treelodge Parkway, Dunwoody, Georgia, and at 550 Abernathy Road, N.E., Building G, Apt. 644, Atlanta, Georgia. [Doc. 56]. Defendant contends that the affidavit for the warrants lacks probable cause. [Id.]. The Government opposes the motion to suppress. [Doc. 90]. First, the Government notes that nothing of evidentiary value was seized from the search at 1507 Treelodge Parkway, making the motion to suppress for that location moot. [Doc. 90 at 2]. With respect to the search of the apartment located at 550 Abernathy Road, while no evidence was seized, the agents did photograph the interior of the apartment which constitutes evidence intended to be used at trial. [Id.]. The Government asserts that the affidavit for the search warrant for this location did establish probable cause, and in any event, the agents had a good faith basis to rely on the issuance of the warrant by a federal magistrate judge. [Id. at 2-3]. Upon consideration of the totality of the circumstances, the court finds that the motion to suppress should be denied.
The Fourth Amendment to the U.S. Constitution protects citizens against unreasonable searches and seizures. It provides, in pertinent part, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation. . . ." U.S. Const. Amend. IV. When a magistrate judge is presented with an application for a search warrant, his or her task is "simply to make a practical, common-sense decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place."Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983).
When warrants are issued without probable cause, the question courts must address is what remedy will be imposed. Although the Fourth Amendment "contains no provision expressly precluding the use of evidence obtained in violation of its commands," the judicially created "exclusionary rule" has been the sanction used by courts. United States v. Leon, 468 U.S. 897, 905-06, 104 S. Ct. 3405, 3411, 82 L. Ed. 2d 677 (1984). In Leon andMassachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984), however, the Supreme Court established a good faith exception to the exclusionary rule. This exception applies in situations where officers placed reasonable reliance on a search warrant that was later determined to be defective. The Court wrote in Leon, "It is the magistrate's responsibility to determine whether the officer's allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment. . . . Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Leon, 468 U.S. at 921, 104 S. Ct. at 3419. Therefore, "[u]nder Leon, `searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.'" United States v. Robinson, 336 F.3d 1293, 1296 (11th Cir. 2003) (quoting Leon, 468 U.S. at 922, 104 S. Ct. at 3420).
In Leon, the Court emphasized that "the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable." Leon, 468 U.S. at 922, 104 S. Ct. at 3420. For this reason, the Court held that the good faith exception does not apply where: 1) "the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth"; 2) "the issuing magistrate wholly abandoned his judicial role . . ."; 3) the warrant was "based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable'"; and 4) the warrant was "so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid." Id. at 923, 104 S. Ct. at 3421 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 2265-66, 45 L. Ed. 2d 416 (1975)).
Because "courts have considerable discretion in conforming their decision making processes to the exigencies of particular cases," in the present case, the court will first determine "whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated." Leon, 468 U.S. at 924-25, 104 S. Ct. at 3421. If the good faith exception applies, the court need not reach the question of probable cause. See, e.g., United States v. Froman, 355 F.3d 882, 888 (5th Cir. 2004) (noting that the Fifth Circuit employs a two-step process where the first determination made is whether the good faith exception applies);United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) (same); United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) ("Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter."). The good faith exception to the exclusionary rule clearly applies in this case, and therefore, the motion to suppress should be denied.
Because Defendant's only attack on the affidavit focuses on probable cause, the issue of applicability of the good faith doctrine falls within the third exception, that is, whether the warrant was "based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable[.]'" Leon, 468 U.S. at 923, 104 S. Ct. at 3421 (citation omitted). Defendant's attack lacks merit. First, the court notes that the affidavit supporting the search warrant was not a "`bare-bone' statement of nothing more than conclusory allegations" which the Supreme Court in Leon found indicative of warrants falling within the third exception to the good faith doctrine. See United States v. Glinton, 154 F.3d 1245, 1257 (11th Cir. 1998). The affidavit provided a summary of the investigation which involved allegations that individuals were illegally importing and smuggling alien females into the United States for the purpose of engaging them in prostitution. Specifically, the affiant interviewed a woman who had been brought into the United States illegally and whom Defendant Santos had attempted to use as a prostitute. The unnamed woman provided details to the affiant about the location, 1507 Treelodge Parkway, used to house not only herself but at least four (4) other women, who were illegal and were engaged in prostitution. One of those women confirmed that she was engaged in prostitution. The unnamed woman also identified the apartment building where the prostitution was ongoing, and the affiant through independent investigation identified the apartment number and associated that apartment, as well as the location on Treelodge Parkway, with Defendant Santos. [Doc. 56, Exhibit A]. This information provided sufficient indicia of probable cause "to establish a connection between the defendant and the residence to be searched and a link between the residence and any criminal activity." United States v. Martin, 297 F.3d 1308, 1315 (11th Cir. 2002).
There was also sufficient information provided in the affidavit to "demonstrate the informant's, [that is, the unnamed woman's,] `veracity' and `basis of knowledge.'" Id. (citation omitted). It was readily apparent that the informant provided first hand information, arguably against her interest as she admitted being an illegal alien, and that the information was detailed and provided specifics which were verified by independent investigation. See Gates, 462 U.S. at 234, 103 S. Ct. at 2330 (affidavit set forth an "explicit and detailed description of the alleged wrongdoing," provided by an informant who was recounting events that he observed firsthand; therefore, the information is entitled "to greater weight than might otherwise be the case");United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000) ("Unlike the anonymous tipster, a witness who directly approaches a police officer can also be held accountable for false statements."); United States v. Le, 173 F.3d 1258, 1266 (10th Cir. 1999) ("[I]t was against the penal interest of the informants to provide this type of information to police, a factor we have considered indicative of reliability."); C.B., By and Through Breeding, Jr. v. Driscoll, 82 F.3d 383, 388 (11th Cir. 1996) ("The tip was provided to administrators directly, rather than anonymously, and was thus more likely to be reliable because the student informant faced the possibility of disciplinary repercussions if the information was misleading.").
This affidavit presented much more than conclusory, "bare-bone" assertions for consideration by the magistrate judge. The affidavit provided factual details for the magistrate judge to consider and evaluate. The law enforcement officers were, therefore, entitled to rely upon his evaluation and determination that "given all the circumstances set forth in the affidavit before him, there [was] a fair probability that contraband or evidence of a crime [would] be found in a particular place."Gates, 462 U.S. at 238, 103 S. Ct. at 2332. The good faith exception is applicable to this case; therefore, this court need not reach the underlying issue of probable cause.
For the foregoing reasons and cited authority, the court RECOMMENDS that Defendant's motion to suppress be DENIED.
4. Conclusion
For the reasons stated, the court GRANTS Defendant Pinto's motion [Doc. 48] to strike and RECOMMENDS that Defendants Santos' and Pinto's motion [Docs. 50 and 52] to dismiss be DENIED and that Defendant Santos' motion [Doc. 56] to suppress be DENIED.
There are no other pending matters before the Magistrate Judge, and the undersigned is aware of no problems relating to the scheduling of this case.
IT IS THEREFORE ORDERED and ADJUDGED that this action be and the same is hereby, declared Ready for Trial as to Defendants Dos Santos, Chagas and Pinto.
SO RECOMMENDED AND ORDERED.