Opinion
06 Cr. 377 (SWK).
February 21, 2007
OPINION AND ORDER
On April 28, 2006, Tosif Siddiqi ("Siddiqi") was indicted on one count of bribery in violation of 18 U.S.C. § 666(a)(1)(B) and (b). Siddiqi now moves the Court for orders compelling the Government to: (A) produce a bill of particulars; (B) furnish a copy of the seizure warrant executed at his home; (C) discloseBrady/Giglio material two months before trial; and (D) disclose Rule 404(b) evidence thirty days in advance of trial. Siddiqi also requests: (E) a Franks hearing and (F) the suppression of two computers seized from his home. For the reasons that follow, the Court grants Siddiqi's request for a bill of particulars, but denies his motions in all other respects.
I. BACKGROUND
On November 16, 2005, FBI agents arrested the defendant in his home, pursuant to a criminal complaint (the "Complaint") and arrest warrant signed by Magistrate Judge Michael Dolinger. The Complaint alleged that the defendant, while working as a project officer with the New York School Construction Authority ("SCA") in 2001 and 2002, accepted approximately $10,000 in computer equipment and other electronics, as well as $16,000 in cash payments, in return for approving requests for payment and change orders submitted by an SCA contractor. (Compl. ¶¶ 1, 5.) While executing the arrest warrant at the defendant's home, FBI agents conducted a search of the premises. That search uncovered two Dell computers whose serial numbers matched those of computers allegedly used to bribe the defendant. Based in part on the discovery of these computers in Siddiqi's home, the FBI applied for and obtained a search warrant for the premises on December 1, 2005 (the "Warrant"). FBI agents promptly executed the warrant and seized two Dell computers from the defendant's home. Several months thereafter, Siddiqi was indicted.
The Court now has before it several pretrial motions for relief filed by the defendant. In addition to various run-of-the-mill requests — for a bill of particulars, a copy of the search warrant application, early disclosure of Brady/Giglio material, and advance notice of Rule 404(b) evidence — the defendant seeks suppression of the computers seized from his home on December 1, 2005. He argues that these computers are fruits of the FBI's unlawful search of his home incident to his arrest on November 16, 2005, and thus, they must be suppressed. Although the Government concedes that the November 16 search violated the defendant's Fourth Amendment rights, it contends that the computers should not be suppressed because there was sufficient untainted evidence in the December 1 search warrant application (the "Warrant Application") to justify a finding of probable cause. In response, the defendant seeks a Franks hearing to probe the truthfulness of an assertion on which the sufficiency of the Warrant Application now largely depends.
II. DISCUSSION
In the sections that follow, the Court addresses the defendant's requests for relief and holds that he is entitled to a bill of particulars. In all other respects, the Court denies the defendant's pretrial motions.
A. Siddiqi Is Entitled to a Bill of Particulars
Requests for a bill of particulars are directed to "the sound discretion of the district court." United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984) (citation omitted). Such requests should be granted only where the charges of the "indictment are so general that they do not advise the defendant of the specific acts of which he is accused." United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (citations omitted). If granted, the bill should "identify with sufficient particularity the nature of the charge pending against [the defendant], thereby enabling [him] to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (citations omitted).
Here, Siddiqi requests three particulars, including: (1) the identity of the "Federal Program benefit or federal assistance in excess of $10,000 received by the [SCA];" (2) the identity, "by date and amount, [of] any `cash payments' the defendant allegedly `accepted and agreed to accept from an SCA contractor, and . . . the name of the contractor;" and (3) the identity, "by date, substance, contract and contractor, [of] the `requests for payment and change-over payments relating to an SCA contract having a value in excess of $500,' which the defendant allegedly approved in return for `cash payments and goods.'" (Def.'s Pretrial Mot. 2-3.) In the following three sections, the Court addresses the propriety of these requests.
1. Specification of Alleged Federal Assistance in Excess of $10,000
The Government has agreed to comply with Siddiqi's first numbered request by providing "additional information to the defendant concerning the federal assistance received by the SCA." (Gov't Letter 2, Dec. 4, 2006.) Insofar as the Government provides that additional information, there is no need for a bill of particulars. See Bortnovsky, 820 F.2d at 574. However, if the Government has not given Siddiqi such information at the time this Opinion issues, the Government shall include the same in the bill of particulars it provides in accordance with the following two sections.
2. Specification of Date, Amount, and Identity of Maker of Alleged Cash Bribes
The basic test for determining the propriety of a bill of particulars is whether disclosure of the information sought is necessary to the defendant's preparation of his defense and to the prevention of undue surprise. Id.; see also United States v. Payden, 613 F. Supp. 800, 816 n. 14 (S.D.N.Y. 1985). Applying this test in analogous circumstances, other courts have required the Government to prepare a bill of particulars specifying the date and amount of unlawful payments, as well as the identity of the maker of such payments. See, e.g., United States v. Lino, 00 CR. 632(WHP), 2001 WL 8356, at *4 (S.D.N.Y. Dec. 29, 2000) (requiring Government to provide bill of particulars specifying "whom [the defendant] agreed to bribe, the pension fund with which the bribe recipient was affiliated, and the amount of the bribe"); United States v. McGuinness, 764 F. Supp. 888, 892-93, 894 (S.D.N.Y. 1991) (holding that Government must provide defendant bill of particulars listing approximate date and amount of payments allegedly made in violation of Taft-Hartley Act, and identity of maker of such payments); United States v. McCarthy, 292 F. Supp. 937, 941 (S.D.N.Y. 1968) (directing Government to comply with its promise to disclose "the dates, times and places" of the charged bribery payments, and ordering Government to provide "the names of those who paid money to defendants"). Likewise, the Court holds that Siddiqi is entitled to notice of the approximate date and amount of illegal payments that he received, as well as the identity of the SCA contractor who made such payments.
The cases cited by the Government are not to the contrary. They involved circumstances where the Government had already provided details about the dates, times, places, and specific nature of the charged offenses, thereby obviating the need for a bill of particulars. See United States v. Ahmad, 992 F. Supp. 682, 684 (S.D.N.Y. 1998); United States v. Conesa, 899 F. Supp. 172, 176 (S.D.N.Y. 1995); United States v. Leighton, 265 F. Supp. 27, 34-35 (S.D.N.Y. 1967).
With respect to the date and amount of the alleged cash bribes, Siddiqi has not received sufficient notice. The Complaint charges that Siddiqi received cash bribes totaling approximately $16,000 in connection with a construction project at Public School 152X during the year 2002. In the absence of more specific information concerning the approximate dates and amounts of individual bribery payments, Siddiqi will be unreasonably hampered in his ability to prepare a defense. For example, Siddiqi will be unable to offer an alibi if he does not know the dates on which he is alleged to have received bribes. Nor will he be able to set forth a lawful purpose for the receipt of any alleged payment if he is unaware of when such payment was allegedly made and in what amount. Therefore, the Government must provide Siddiqi with a bill of particulars specifying the approximate dates and amounts of the cash payments averred in the Indictment.
Inasmuch as the Government has already conveyed to Siddiqi the identity of the SCA contractor from whom he allegedly accepted bribes (see Gov't Letter 2, Dec. 4, 2006), such information need not be included in this bill of particulars. Nonetheless, if such information has not been adequately communicated to Siddiqi, it must also be set forth in the bill.
3. Specification of Requests for Payment and Change Orders Allegedly Approved in Exchange for Bribes
As set forth above, see supra Part II.A.2, a criminal defendant is entitled to a bill of particulars where the information sought is necessary to the preparation of his defense or the prevention of undue surprise. Here, in his capacity as an SCA Project Officer, Siddiqi was charged with reviewing and approving all requests for payment and change orders submitted in connection with a construction project at P.S. 152X. In a similar context, courts have required that the Government specifically identify allegedly false statements forming the basis of fraud charges.See, e.g., Bortnovsky, 820 F.2d at 574-75; United States v. Nachamie, 91 F. Supp. 2d 565, 574-75 (S.D.N.Y. 2000); United States v. Trie, 21 F. Supp. 2d 7, 21-22 (D.D.C. 1998). These courts reasoned that where defendants have prepared multiple statements or documents, the Government should specify which of these are being called into question, lest defendants be forced to review all of the statements or documents in order to prepare a defense of the veracity of each.Bortnovsky, 820 F.2d at 575; Nachamie, 91 F. Supp. 2d 565, 571, 574-75; Trie, 21 F. Supp. 2d at 21-22. Likewise, the Court finds here that the Government should prepare a bill of particulars identifying which of the requests for payment and change orders were allegedly approved by Siddiqi in return for bribes, so that he may focus his defense efforts on those specific instances.
In specifying these tainted requests for payment and change orders, the Government need not allege that particular requests for payment or change orders were approved in return for particular bribery payments. Requiring this sort of one-to-one mapping of tainted requests for payment or change orders to particular bribes would improperly restrict the Government's proof at trial. See United States v. Glaze, 313 F.2d 757, 759 (2d Cir. 2002) ("[T]he government is strictly limited to proving what [the bill of particulars] has set forth in it.") (citations and quotation marks omitted). Nonetheless, the Government should identify the group of approved requests for payment and change orders that it alleges were part of the bribery scheme with which Siddiqi is charged. This group of tainted requests for payment and change orders should be defined by date, by the substance of the relevant requests for payment and change orders, and by the identity of the contractor submitting them.
To the extent that the Government has communicated to Siddiqi the identity of the contractor who allegedly paid the bribes in question (see Gov't Letter 2, Dec. 4, 2006), the relevant requests for payment and change orders have already been sufficiently identified in that respect. Thus, the Government must file a bill of particulars identifying, by date range and substance, the requests for payment and change orders that were allegedly approved in return for unlawful bribes.
In sum, Siddiqi is entitled to a bill of particulars that: (1) specifies the approximate dates and amounts of the individual cash bribes charged in the Indictment; and (2) identifies, by date range and substance, the requests for payment and change orders that were allegedly approved in exchange for the charged bribes. The bill of particulars shall be filed within ten days of the issuance of this Opinion.
B. The Government Has Produced the Requested Warrant and Warrant Application
The Government claims that it has produced the Warrant and Warrant Application. (Gov't Letter 2, Dec. 4, 2006.) Further, Siddiqi's motion to suppress relies in part on information contained in these documents. Therefore, Siddiqi's request for the production of the Warrant and Warrant Application is moot. C. Siddiqi Is Not Entitled to an Order Compelling Disclosure of Brady / Giglio Material Two Months Before Trial
Due process requires that the prosecution produce "evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). In this context, evidence is material if there is a reasonable probability that the result of the proceeding would be altered by its disclosure. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). Moreover, "[f]avorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Material evidence that falls in the former category is typically called Brady evidence, while material evidence that belongs to the latter category is usually called Giglio evidence, thoughGiglio evidence may more properly be thought of as a subset ofBrady evidence. See id. at 140.
The Second Circuit has eschewed any bright-line test requiring the disclosure of Brady/Giglio material immediately on demand, or at some specified point before trial. See Coppa, 267 F.3d at 146. Instead, prosecutors must disclose Brady/Giglio evidence "no later than the point at which a reasonable probability will exist that the outcome would [be] different if an earlier disclosure [were] made." Id. at 142 (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)). Here, the defendant requests that he be given Brady/Giglio materials two months in advance of trial, without making any showing that such advance notice is required by the relevant constitutional standard. As there is no reason on the facts now before the Court to conclude that the Government must disclose its Brady/Giglio material two months before trial in order to meet its constitutional obligation, Siddiqi's request must be denied. D. Siddiqi Is Not Entitled to the Production of Rule 404(b) Evidence 30 Days Before Trial
Nonetheless, the Court notes that the existence of a "longstanding and judicially-endorsed practice in this District" allowing the prosecution to produce Giglio evidence the Friday before trial (Gov't Letter 4, Dec. 4, 2006) does not absolve the Government of its overriding obligation to provide Brady andGiglio material "in time for its effective use at trial." See Coppa, 267 F.3d at 140; Leka, 257 F.3d at 100. This standard remains the constitutional benchmark and it must be applied to the distinct facts of each individual case.
Under Rule 404(b), the prosecution is required to provide reasonable notice in advance of trial of evidence concerning other crimes, wrongs, or acts committed by the defendant that it intends to introduce at trial. See Fed.R.Evid. 404(b). Although Rule 404(b) does not define reasonableness, courts in this Circuit have routinely held that two weeks' notice is reasonable.See, e.g., United States v. Vega, 309 F. Supp. 2d 609, 617 (S.D.N.Y. 2004) (citing several cases). Longer notice periods have generally been required only where there is a demonstrated high likelihood that the Government will rely substantially on Rule 404(b) evidence, and there is no threat to witnesses posed by early disclosure. See United States v. Livoti, 8 F. Supp. 2d 246, 250 (S.D.N.Y. 1998); United States v. Nachamie, 91 F. Supp. 2d at 577.
Here, Siddiqi has failed to present any concrete circumstances demonstrating that Rule 404(b)'s reasonableness provision requires thirty days' advance notice. As the Court is unwilling at this time to speculate as to the prior bad acts' evidence that the Government will seek to introduce at trial, the Court denies Siddiqi's motion for thirty days' advance notice of the Government's Rule 404(b) evidence. See United States v. Matos-Peralta, 691 F. Supp. 780, 791 (S.D.N.Y. 1988) (noting that "the evidence the government wishes to offer [under Rule 404(b)] may well change as the proof and possible defenses crystallize").
E. Siddiqi Is Not Entitled to a Franks Hearing
A criminal defendant is entitled to an evidentiary hearing to determine the veracity of an allegation contained in a search warrant affidavit if he makes "a `substantial preliminary showing' that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the judge's probable cause finding."United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998) (citingUnited States v. Levasseur, 816 F.2d 37, 43 (2d Cir. 1987));accord Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Here, Siddiqi seeks a Franks hearing to challenge statements made by Agent Long (the "Affiant") in the Warrant Application and the Complaint, concerning a tape-recorded telephone conversation between Siddiqi and the Cooperating Contractor ("CC") that took place on November 24, 2004 (the "November 24 conversation"). In particular, Siddiqi disputes the Affiant's assertion that he "acknowledged" possession of two computers during the November 24 conversation. (Search Warrant Aff. ¶ 7; Compl. ¶ 10.) As Siddiqi has failed to make a substantial preliminary showing that the claimed inaccuracy was the result of the Affiant's deliberate falsehood or reckless disregard for the truth, the Court denies his request for a Franks hearing.
The Complaint refers to the November 24 conversation as having occurred on or about November 23, 2004. (Compl. ¶ 10.) Both parties now agree, however, that the conversation occurred on November 24, 2004. In addition, neither party alleges that this discrepancy is in any way material to the Court's decision regarding the propriety of holding a Franks hearing.
Siddiqi's only offer of proof regarding the Affiant's scienter is the purported discrepancy between the Affiant's assertion regarding the November 24 conversation, and the actual content of that conversation, as memorialized in the Government's draft transcript (the "Transcript"). In essence, Siddiqi claims that the Affiant's assertion was so patently false that the Affiant must have known it to be so, or at least have been reckless as to its truthfulness, especially given that the Affiant had read the Transcript. (See Compl. ¶ 10.) Courts have allowed scienter to be "inferred `from circumstances evincing obvious reasons to doubt the veracity of the allegations.'"United States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002) (quotingUnited States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984));see also Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991) ("Recklessness may be inferred where the omitted information was clearly critical to the probable cause determination."). Thus, the possibility exists that an obvious discrepancy between an affiant's description of a conversation and the actual content of that conversation could give rise to an inference of scienter. Nonetheless, the Court finds here that the Affiant's characterization of the November 24 conversation was not so clearly false as to warrant an inference of scienter.
In isolation the Transcript offers little support for the Affiant's assertion that Siddiqi "acknowledged" possession of the computers. To acknowledge is to "admit, own, avow, confess . . ."Webster's Third New International Dictionary 17 (1993). At no point during the November 24 conversation does Siddiqi explicitly admit that he still possesses the computers. Furthermore, Siddiqi's promise to fax the CC identifying information pertaining to the computers is an implicit admission that he possesses a record of that information, not that he still possesses the computers. Thus, if the Transcript is read in a vacuum, there is a discrepancy between the Affiant's assertion regarding the November 24 conversation and the content of that conversation.
Nevertheless, this discrepancy fades significantly when the Transcript is interpreted contextually. See United State v. Gotti, 42 F. Supp. 2d 252, 280 (S.D.N.Y. 1999). The Government has submitted to the Court an internal memorandum of the Office of the Inspector General of the SCA (the "Memorandum"), which describes the CC's conversation with Siddiqi on November 22, 2004 (the "November 22 conversation"). During that conversation, Siddiqi indicated that "one of the computers worked better than the other, [and promised] to go home and check which of the two computers was the better one. Siddiqi also stated that he would call [the CC] back with the serial and model numbers." (Gov't Letter Ex. A, Jan. 18, 2007.) Whether there is a discrepancy between the Affiant's assertion and the true content of the November 24 conversation is a much closer call when the Transcript is read in the light of the November 22 conversation.
Siddiqi argues that the Memorandum "does not accurately describe either the government's transcript of the [November 22] conversation or the conversation when properly translated into English." (Def.'s Letter 1, Jan. 31, 2007.) However, Siddiqi has not provided the Court with a full copy of the Government's transcript, so the Court cannot evaluate the claimed inaccuracy. Moreover, the brief description of the transcript provided by Siddiqi does little to undermine the essential conclusion of the Memorandum. In that description, "the cooperating contractor pushes the defendant `to go to your place and check which one is better and tell me, tell me the order number, and then I will order the same. . . .' [T]he defendant apparently and reluctantly agrees (`All right, why it is required so urgently')." (Def.'s Letter 2, Jan. 31, 2007.) Since Siddiqi's affirmative response ("All right") may constitute an adoption of the CC's statement,see, e.g., United States v. Williams, 577 F.2d 188, 194 (2d Cir. 1978), there may be little difference between the Government's transcript of the November 22 conversation, as described by Siddiqi, and the Memorandum's summary of the same. In any event, Siddiqi has failed to make the requisite preliminary showing that the Memorandum contained a falsehood. Absent such a showing, the Court need not consider Siddiqi's further argument, by reference to Franks, 438 U.S. at 164 n. 6, that a law-enforcement officer may not insulate a deliberate or reckless falsehood from challenge by passing it through another unsuspecting officer.
The November 24 conversation begins with Siddiqi, absent any prompting, volunteering, "Yes, let me give you that number." This offer, as well as similar unsolicited statements, suggests continuity between the November 22 conversation and the November 24 conversation. More pointedly, these statements imply that Siddiqi had done what he promised to do on November 22, i.e., he had returned home and checked which one of the computers worked better. As the action of "checking to see which computer works better" presupposes physical possession of the relevant computers, Siddiqi's apparent confirmation that he had done just that provides some measure of support for the Affiant's assertion that Siddiqi acknowledged possession of the computers. At the very least, the context provided by the November 22 conversation makes the Affiant's interpretation of Siddiqi's statements during the November 24 conversation more plausible, if not perfectly accurate.
After a short exchange of pleasantries, the following conversation took place:
S: Yes, let me give you that number.
CI: Yes, please tell me.
S: The number for the computer?
CI: Yes.
S: Write this down then.
CI: Yes.
S: The computers which are the best nowadays.
Given the plausibility of the Affiant's interpretation of the November 24 conversation, the Court finds that Siddiqi has failed to make a substantial preliminary showing that the Affiant possessed the requisite scienter to trigger an evidentiary hearing. The discrepancy, if any, between the content of the November 24 conversation, as memorialized in the Transcript, and the Affiant's assertion regarding that conversation, is not clear enough to warrant an inference that the Affiant deliberately or recklessly misled the Magistrate Judge. As Siddiqi provides no other evidence of the Affiant's scienter, the Court denies his request for a Franks hearing.
F. Siddiqi Is Not Entitled to the Suppression of Two Computers Seized from His Home
A valid search warrant must be supported by probable cause. See U.S. Const. amend. IV. Probable cause to conduct a search exists when "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 (1983). Here, Siddiqi challenges the Warrant on the grounds that it was predicated on stale information, which did not in any event sufficiently identify his residence as the likely location of contraband.
Although reviewing courts generally afford deference to an issuing magistrate's finding of probable cause, see United States v. Jakobetz, 955 F.2d 786, 803 (2d Cir. 1992), affirming so long as the magistrate had a "substantial basis for concluding that probable cause existed," Gates, 462 U.S. at 238-39 (citation and quotation marks omitted), no presumption of regularity applies here. The strongest evidence submitted in support of the Warrant Application consisted of observations made by FBI agents who arrested Siddiqi at his home on November 16, 2005. These agents allegedly saw two Dell computers on the premises and recorded their serial numbers, which the Affiant later linked to computers the CC claimed to have given Siddiqi as a bribe. (Search Warrant Aff. ¶¶ 8-9.) However, the Government has conceded that the scope of the November 16 search of Siddiqi's home violated his Fourth Amendment rights. (Gov't Letter 5, Dec. 4, 2006.) As the issuing magistrate relied on tainted evidence derived from this unlawful search, the Court must now make an independent determination as to whether the remaining, untainted evidence supports a finding of probable cause. See United States v. Trzaska, 111 F.3d 1019, 1026 (2d Cir. 1997) (citations omitted).
After the excision of tainted evidence derived from the unlawful search of Siddiqi's home, the Warrant Application rests on two principal assertions: (1) the CC stated that he had purchased computers for Siddiqi's personal use some time during 2002 (Search Warrant Aff. ¶ 6; Compl. ¶ 6); and (2) the defendant acknowledged continued possession of these computers in a tape-recorded telephone conversation on November 24, 2004 (Search Warrant Aff. ¶ 7; Compl. ¶ 10). Whether probable cause may be predicated on these two assertions presents difficult issues regarding staleness, see United States v. Sgro, 287 U.S. 206, 210 (1932) ("[I]t is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."), and the connection between the evidence sought and the location of the search. See Gates, 462 U.S. at 238 ("particular place"); United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) ("To establish probable cause to search a residence, two factual showings are necessary — first, that a crime was committed, and second, that there is probable cause to believe that evidence of such a crime is located at the residence.") (citations omitted). Although this is undoubtedly a close case, the Court finds that there was probable cause to search Siddiqi's home.
1. The Assertions in the Warrant Application Were Not Stale
There is no "arbitrary `cut-off' expressed in days or weeks beyond which probable cause ceases to exist." United States v. Beltempo, 675 F.2d 472, 478 (2d Cir. 1982); accord United States v. Wagner, 989 F.2d 69, 75 (2d Cir. 1993) ("[T]here is no bright line rule for staleness. . . ."). Rather, staleness challenges should be resolved through a flexible, commonsense inquiry into whether probable cause existed at the time the warrant issued.See Beltempo, 675 F.2d at 478. In conducting this inquiry, the Court must consider the amount of time that has passed, the kind of property sought, and the nature of the underlying criminal activity. See United States v. Singh, 390 F.3d 168, 181-82 (2d Cir. 2004). Here, although the passage of time supports Siddiqi's staleness challenge, the kind of property sought and the nature of the alleged criminal activity at issue tip the scales in favor of a finding of probable cause.
Desktop computers are innocuous durable goods that are likely to be kept over a period of years. See United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977) (finding staleness challenge less compelling because items were not "inculpatory per se or likely to be disposed of for any other readily apparent reason"). The Complaint stated that Siddiqi received computers as a bribe in 2002 and still possessed them two years later on November 24, 2004. (Compl. ¶¶ 6, 10.) Given this specific information, as well as common knowledge concerning computer shelf life, it is reasonable to infer that Siddiqi would continue to possess the computers when the Warrant issued one year later on December 1, 2005. See Beltempo, 675 F.2d at 478 ("The overall approach [to probable cause] should be one of flexibility and commonsense.").
In this case, unlike in Singh, the Government failed to include in the Warrant Application a statement concerning the average life of the computer equipment at issue. See Singh, 390 F.3d at 182 ("Special Agent Gerardi, an experienced case agent, opined . . . that the materials sought were of the type that would be kept over a period of years. . . ."). This, of course, makes the Court's probable-cause determination somewhat more difficult. Nonetheless, adhering to the commonsense approach set forth in the case law, the Court determines that a three-year passage of time between the computers' purchase and the issuance of the Warrant, and a one-year gap between the most recent assertion concerning Siddiqi's possession of the computers and the Warrant's issuance, do not merit a staleness finding.
This inference is supported by the relevant case law. For example, in Singh, the Second Circuit upheld the validity of a search warrant predicated on evidence between 18 and 20 months' old, partly because the property sought — business records — was of "the type that would necessarily be kept over a period of years." 390 F.3d at 182. In United States v. Paul, this Court partially invalidated a search warrant based on allegations that were more than five months' old, on the grounds that the Government sought cash proceeds, which were unlikely to be kept at the defendant's residence for an extended period of time. 692 F. Supp. 186, 193 (S.D.N.Y. 1988). However, this Court noted that a different set of inferences applied to business records because "it is reasonable to infer that [the defendant] would keep bank statements, safe deposit box information or keys and other financial records or instruments in his house over an extended period of time. . . ." Id. Since computers are more akin to business records — in that they are normally kept over an extended period of time — than they are to cash, the "kind of property" in question supports a finding of probable cause.
Moreover, the nature of the criminal activity with which Siddiqi is charged offers further support for a probable-cause finding. Most courts that have addressed this issue have focused on whether the charged criminal activity was long-term or ongoing. See, e.g., Singh, 390 F.3d at 182 (finding that passage of time is less compelling concern when criminal activity is long-term or ongoing); Beltempo, 675 F.2d at 477 (same). Here, staleness concerns are not mitigated by the long-term or ongoing nature of Siddiqi's alleged criminal activity, as neither of these factors is present. See Paul, 692 F. Supp. at 192 (finding no pattern of ongoing criminal activity in case involving two bribes taken over a period of at most eight months). Nonetheless, staleness concerns are mitigated by another aspect of the charged crime. In particular, the Complaint alleges that Siddiqi received two computers for his personal use. (Compl. ¶ 6.) If Siddiqi had taken the computers with a view to selling them, a probable-cause finding might be inappropriate. See Wagner, 989 F.2d at 75 (upholding district court's finding that there was no probable cause to search the defendant's residence for marijuana, even though informant claimed to have purchased marijuana there six weeks earlier). Given that Siddiqi allegedly held the computers for personal use, however, it was more likely that he would not dispose of them within a year.
In light of the kind of property sought and the nature of the charged criminal activity, the Court finds that the long passage of time between the most recent assertion in the Warrant Application and the Warrant's issuance is not determinative. If Siddiqi possessed the computers on November 24, 2004, as he allegedly acknowledged, then there was a fair probability — and thus, probable cause — to believe that he still possessed them when the Warrant issued on December 1, 2005.
2. The Assertions Establish Requisite Nexus to Siddiqi's Home
In order to obtain a warrant for the search of a residence, the Government must show probable cause to believe not only that a crime was committed, but also that evidence of such crime is located at the residence. See Travisano, 724 F.2d at 345. Proof of the requisite nexus between a residence and the charged crime "does not require direct evidence and may be based on reasonable inference from the facts presented based on common sense and experience." Singh, 390 F.3d at 182 (citations and quotation marks omitted). Inferences about the location of evidence may arise from "the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal [considerations of] where a criminal would be likely to hide stolen property." United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970). Here, the available information supports a finding of probable cause to believe that the computers were at Siddiqi's residence on December 1, 2005.
The defendant does not dispute that there was probable cause to believe that he had received bribes from the CC. In fact, a warrant was issued for his arrest just two weeks before his home was searched. Moreover, the defendant allegedly acknowledged on November 24, 2004, that he possessed the computers in question, and the Court has found that this alleged acknowledgement was not stale. See supra Part II.F.1. Although it is conceivable that the defendant might have kept the computers at a location other than his home, it is nonetheless eminently reasonable to infer that the defendant would have the computers at home. Given the "value and bulk" of the computers, Siddiqi would likely secure them in a safe location with significant storage space, such as a residence. See Lucarz, 430 F.2d at 1055. Furthermore, computers are of little value to their possessor unless they are in a readily accessible location, such as a home or office, where use can be made of them. Cf. State v. LeBron, 349 N.W.2d 918, 922 (Neb. 1984) ("It is probable that a VCR would be found at the residence of the purchaser."). Moreover, the Complaint states that the computers were for Siddiqi's personal use, which only reinforces the hypothesis that he would keep them at his home, rather than at a storage facility or other location from which he might consummate a sale. In light of these considerations, the Court finds that Affiant's assertions established the requisite nexus between the evidence sought and Siddiqi's home.
In summary, the Warrant Application, when stripped of the tainted evidence derived from the unlawful search of Siddiqi's home, supports a finding of probable cause to believe that the computers would be at the defendant's residence. The remaining, untainted assertions were not stale, and they established a sufficient nexus between the charged criminal activity and Siddiqi's home. In light of the totality of the circumstances —e.g., the existence of probable cause to believe that Siddiqi had accepted bribes, the purported use to which Siddiqi had put the computers, and Siddiqi's acknowledgment of continued possession of the computers on November 24, 2004 — there was a fair probability that the computers would be found at his home on December 1, 2005.
III. CONCLUSION
As set forth in Part II.A, supra, the Government is ordered to produce a bill of particulars. The defendant's pretrial motions are denied in all other respects. The next conference in this case is scheduled for March 7, 2007, at 10:30 a.m.
SO ORDERED.