Petition — Teslovich v. United States

FILED

JAN 95 1984

83-1237 | sell

IN THE

United States Supreme Court

OCTOBER 1983 TERM

GEORGE R. TESLOVICH,

Petitioner (Appellant Below)

UNITED STATES OF AMERICA,

Respondent (Appellee Below)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

STANLEY E. PREISER

FREDERICK D. FAHRENZ

Preiser & Wilson, L.C.

1012 Kanawha Boulevard, E.

Post Office Box 2506

Charleston, WV 25329

(304) 344-9651

Counsel for Petitioner,

George R. Teslovich

January 25, 1984

LS ET A CE AE A TE TT SES PT

CASILLAS PRESS INC + 1717 K ST NW WASH DC 20036 + 223-1220

QUESTIONS PRESENTED FOR REVIEW

1. Whether the affidavit for search warrant was insuffi-

cient to establish probable cause.

2. Whether the seizure of the accountant workpapers

exceeded the scope of the search warrant.

3. Whether owners of property have standing to move

to suppress the fruits of illegal searches of rooms on that

property.

4. Whether an improper return and inventory of prop-

erty taken was made on the search warrant.

PARTIES

The only parties presented in this petition are those

named in the caption of the case, George R. Teslovich

(Petitioner, Appellant Below), and the United States of

America (Respondent, Appellee Below).

Counsel for George A. Solomon, an appellant below, is

filing a petition on his behalf. His case was consolidated

with petitioner Teslovich’s for decision in the United

States Court of Appeals for the Third Circuit.

(ili)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .................... i

DEO CR UE Dacedbccceescceccocecssenes i

US irc ccaccdeeeseecucees iii

Ne ccna snc cavessescsaseneveces iv

Be ee l

ES OEE TTT ETT TTT Te 2

CONSTITUTIONAL PROVISIONS AND STATUTES .......... 2

Eo osc sscccesssce cossccceccccescs 3

EE 5

i eee ceed aces ectececovecceceoscees 18

APPENDIX

Judgment, United States Court of

os oor cccccccccccceceseece la

Opinion, United States Court of

Appeals for the Third Circuit ...............0cccccuues 3a

CE OUEENIUED co cscvcccccccccccecccccess 7a

Transcript of District Court’s Findings

of Fact and Conclusions of Law ................0005. 25a

(iv)

TABLE OF AUTHORITIES

Cases:

Aguilar v. State of Texas,

378 U.S. 108, 84S.Ct. 1909 (1964) ........ cece eee

Illinois v. Gates,

___. U.S. — _, 76 L.Ed.2d $27,

PEs SPOUT CRUEED coc cccncivccvesccccenssesece

Marron v. United States,

275 U.S. 192, 48 S.Ct. 74,

Fed SOO GUEED vc ccccssanccccceaseesvaecesssane

Mancusi v. DeForte,

392 U.S. 364, 20 L.Ed.2d 1154,

Ge es MEU vc ancsescncesccctesccsencuns

Silverthorne Lumber Co. v. United States,

251 U.S. 385, 40 S.Ct. 182,

GER DOP CRUE save ces cnvwverevcccscccnssenses

Spinelli v. United States,

393 U.S. 410, 21 L.Ed.2d 637,

SPB, SOOKIINT cvccccnvccses: secvcvencccnness

United States v. Fisher,

352 F.Supp. 731 (E.D.Pa. 1972),

aff'd, 500 F.2d 683 (3rd Cir. 1974)... 0... cece

United States v. Griffin,

$02 F.2d 959 (6th Cir., 1973),

cert. denied, 419 U.S. 1050 (1974) .. 06... eee es

Walter v. United States,

4478 U.S. 649, 100 S.Ct. 2395,

GS L.A BE GIO URED 0 onc vc ccccscccsccnccesesecns

Statutes and Rules: Page

Constitution of the United States:

ER FC PN OPT PE TT A ite: 13, 14

I so Dec sub und wun ls &secetacct oe 2

EPs 6's 646 o4% Ake o eck ne nets cCaenue tere 2

ae es Oe Gs I ee 3, 16,17

IN THE

United States Supreme Court

OCTOBER 1963 TERM

GEORGE R. TESLOVICH,

Petitioner (Appellant Below)

UNITED STATES OF AMERICA,

Respondent (Appellee Below)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS IN COURTS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit in this case has not yet been published in

official form. The court’s slip opinion is reproduced in the

Appendix to this petition. United States of America v.

George A. Solomon, No. 83-5312, United States of

America v. George R. Teslovich, No. 83-5313, and United

States of America v. George M. Teslovich, Jr., No.

83-5359, (3rd Cir.).

The United States District Court for the Western

District of Pennsylvania denied the defendant’s motion to

suppress and the findings of fact and conclusions of law of

the District Court Judge and are reproduced in the Appen-

dix.

>.

GROUNDS OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit in this case was dated and entered on the

Sth day of December, 1983. No motion for re-hearing was

made, and no extension of time for filing this petition was

requested.

This Court has subject matter jurisdiction pursuant to

28 U.S.C. §1254 to review the judgment, by writ of cer-

tiorari granted upon timely petition of a party (here,

George R. Teslovich, Appellant Below).

The judgment of the United States Court of Appeals for

the Third Circuit is final with respect to the issues

presented in this petition. The appellate court’s judgment

is ripe for review at this time.

CONSTITUTIONAL PROVISIONS

CONSTITUTION OF THE UNITED STATES,

AMENDMENT IV

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

CONSTITUTION OF THE UNITED STATES,

AMENDMENT V

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be sub-

3

ject for the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty or

property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.

FEDERAL RULES OF CRIMINAL PROCEDURE,

RULE 41(d)

(d) Execution and Return with Inventory

The officer taking property under the warrant shall give

to the person from whom or from whose premises the

property was taken a copy of the warrant and a receipt for

the property taken or shall leave the copy and receipt at

the place from which the property was taken. The return

shall be made promptly and shall be accompanied by a

written inventory of any property taken. The inventory

shall be made in the presence of the applicant for the war-

rant and the person from whose possession or premises the

property was taken, if they are present, or in the presence

of at least one credible person other than the applicant for

the warrant or the person from whose possession or

premises the property was taken, and shall be verified by

the officer. The federal magistrate shall upon request

deliver a copy of the inventory to the person from whom

or from whose premises the property was taken and to the

applicant for the warrant.

STATEMENT OF THE CASE

In early 1979, Richard Geitgey of the FBI was involved

in an investigation into a possible coal fraud occurring at

the Hatfield Power Station in Western Pennsylvania. This

investigation had focused upon a company called Suncrest

4

Environmental Resource, Inc., which was a supplier of

coal to the Hatfield Power Station. In July of 1979,

Henrietta Foster, an employee of Suncrest, came forward

and provided information purportedly relating to a

scheme within Suncrest to defraud the West Penn Power

System by shipping inferior coal to the Hatfield Power

Station. She provided this information to Geitgey and at

the same time turned over to him two sealed packages of

documents which had been given to her for safekeeping

by her employer, Philip Gaziano. She had been told by

Gaziano that the envelopes contained records of Solomon

& Teslovich, Inc. Following an analysis of the contents of

these two sealed packages and some limited investigative

work, Agent Geitgey sought to have a search warrant

issued to search the business premises of Solomon &

Teslovich, Inc. On December 19, 1979, the FBI conducted

a search, pursuant to a search warrant, of the offices of

Solomon & Teslovich, Inc. During the course of this

search, the FBI seized, among a multitude of other things,

the personal accountant workpapers belonging to Frank

Lucas, the accountant for Solomon & Teslovich, Inc.

Agent Pino of the FBI prepared an inventory of the items

seized in this search.

George A. Solomon, George R. Teslovich, and George

M. Teslovich, Jr., were subsequently indicted in the

Western District of Pennsylvania for various income tax

violations based primarily upon the records seized in the

December 19, 1979, search. These three defendants,

through counsel, proceeded to file various pre-trial mo-

tions, including motions to suppress the evidence seized in

the December, 1979, search. Hearings were held and

evidence was received on these motions in January, 1983.

The Honorable Donald E. Ziegler, United States District

Judge for the Western District of Pennsylvania at Pitts-

s

burgh, subsequently denied the defendants’ motions for

suppression of this evidence,

The defendants subsequently entered into plea agree-

ments with the United States Attorney and entered pleas

of guilty pursuant to those agreements, These pleas of

guilty were conditioned upon appellate review of the

District Court’s ruling on the various motions to suppress.

All three defendants have now been sentenced and remain

on bond pending appellate review.

ARGUMENT

Issue I

As can be seen from an examination of the affidavit for

search warrant much of the information relied upon by

Agent Geitgey in obtaining the search warrant was provid-

ed by an informant, Henrietta Foster. The contention is

that the affidavit as a whole does not establish probable

cause for the issuance of a search warrant, and further it is

here argued that the information supplied by Henrietta

Foster and contained within the affidavit was not demon-

strated to be reliable to the degree that is required by the

United States Constitution, As a result, the search warrant

in question here should not have been issued and the

evidence seized pursuant to that search warrant must be

suppressed.

At the outset, it is important to remember that a review-

ing court, in passing on the validity of a search warrant,

may consider only the information that was brought to the

magistrate’s attention at the time he issued the warrant.

Aguilar v. State of Texas, 378 U.S. 108, 84 §.Ct, 1509

(1964). In this case, since the only information that was

submitted to the magistrate is contained in the affidavit

6

for search warrant, the Court is limited to reviewing the

magistrate’s decision based upon what is contained within

the four corners of that affidavit.

In Jilinois v. Gates, —. : U.S, — _., 76 L..Bd.2d $27,

103 S.Ct, 2317 (1983), this Court rejected the mechanical

test of Spinelli and replaced it with a “totality of the cir-

cumstances approach,” This approach suggests that a

magistrate should review all of the circumstances set forth

in the affidavit before him, including the veracity and

basis of knowledge of persons supplying hearsay informa-

tion, and determine if there is a fair probability that con-

traband or evidence of a crime will be found in a particular

place, The Court, however, by discarding the technical re-

quirements of Spinelli, did not discard the factors that

Spinelli indicated should be considered by the magistrate,

The decision merely changes how those factors should be

applied to a particular case, Thus, Gates clearly estab-

lished that an informant’s veracity or reliability and his

basis of knowledge are still to be considered as relevant

considerations in the totality of circumstances analysis

that should be applied to the probable cause determina-

tion,

Of particular importance to the case at hand is the

recognition of the value of corroborating evidence in

establishing the sufficiency of an affidavit which relies on

hearsay to establish probable cause, See Gates, supra, 76

L.Ed.2d at 550, As applied to this case, it is apparent that

whether the hearsay statements provided to Agent Geitgey

and set forth in the affidavit were sufficient to establish

probable cause for the issuance of the warrant will depend

strongly upon the extent to which the veracity of Ms, Fos-

ter and her basis of knowledge for the information sup-

plied are adequately established, In this connection, it is

especially relevant to look to the affidavit to see what in-

7

dependent evidence is submitted to corroborate the hear-

say information provided by Ms. Foster,

A review of the affidavit in this case clearly shows that

the hearsay information of Henrietta Foster dealt with

matters occurring at her place of employment, Suncrest

Environmental Resource, Inc, Paragraphs four through

five of the affidavit delve into a lengthy discussion of a

fraudulent scheme engaged in by Suncrest Environmental

Resource, Inc,, through its owner and president, Philip

Gaziano, as told to Agent Geitgey by Henrietta Foster,

These allegations of criminality occurring at Suncrest,

even if proven to be reliable, were wholly irrelevant to the

question of whether there was criminality occurring at

Solomon & Teslovich, Inc, There is absolutely no signifi-

cant relationship between Suncrest Environmental Re-

source, Inc,, and Solomon & Teslovich, Inc, It is obvious

that Agent Geitgey’s intention was to attempt to construct

some kind of connection between the fraudulent scheme

he believed was going on at Suncrest and the Solomon &

Teslovich records that he had been supplied by Henrietta

Foster, Knowing that the records of Solomon & Teslovich

themselves were not sufficient to establish probable cause

to believe that there was evidence of criminal activity on

the premises of Solomon & Teslovich, Inc,, Agent Geitgey

sought to construct an artificial similarity between the

Suncrest scheme as related by Henrietta Foster and his

own hopes as to what the Solomon & Teslovich records in-

dicated, Agent Geitgey’s imagination, however, took him

well beyond the reasonable bounds of acceptable informa-

tion that must be provided to a magistrate before the

government can be allowed to force its way into a citizen's

place of business and seize his property against his will,

A realistic view of the facts suggests that there is no

reliable or credible information contained within the af-

8

fidavit which can substantiate Agent Geitgey’s unsup-

ported conclusion that since Philip Gaziano was a former

employee of Solomon & Teslovich and had stated to him

that Solomon & Teslovich were great teachers, the

reported scheme taking place at Suncrest must have been

transported from Solomon & Teslovich to Suncrest by

Philip Gaziano., The fact of the matter is that Agent

Geitgey, realizing that the facts he had were not sufficient

to establish probable cause, completely manufactured the

connection between the two entities. Of course, this con-

nection could not have been constructed had it not been

for Henrietta Foster's tale of fraud at Suncrest. Thus, the

reliability of her information is crucial to the validity of

this warrant, The only information relied upon by Agent

Geitgey in corroborating the story told to him by Henriet-

ta Foster concerning Suncrest is contained within the

fourth subparagraph of paragraph number four of the af-

fidavit,

First, Agent Geitgey contends that he considered the in-

formation provided by Henrietta Fosier to be reliable due

to the fact that she was incriminating herself with this in-

formation, This statement alone is not sufficient to add

credence to Ms, Foster's story. The mere fact that the in-

formation provided was incriminating to Ms, Foster in

Agent Geitgey’s own mind is irrelevant. The relevant ques-

tion is whether or not Ms, Foster herself considered the in-

formation she was relating to be incriminating to her. If

she did not in her own mind think that she was incrimi-

nating herself then there is no basis for concluding that the

information is reliable. The affidavit itself contains

nothing from which it can even be inferred that Ms. Foster

felt that she was incriminating herself by providing the in-

formation, In point of fact, Ms. Foster testified at the sup-

pression hearing in this matter to the effect that she did

9

not think that she was incriminating herself at the time she

provided Agent Geitgey with the information. Therefore,

Henrietta Foster’s information cannot be considered reli-

able on this basis.

The remainder of the corroborating circumstances as-

serted by Agent Geitgey are nothing more than isolated

facts drawn together by Agent Geitgey to paint an un-

substantiated picture of guilt on the part of Philip Ga-

ziano. As to Philip Gaziano’s actions pursuant to the FBI

investigation of Suncrest, his actions demonstrate nothing

more than a fear of the grand jury sysiem. While he may

have indeed had something to hide, the facts related in the

affidavit do not logically lead one to the conclusion that

Gaziano was in fact guilty of the type of scheme related by

Henrietta Foster. Likewise, his relationship with Alfred

Royster can in no way be construed as being in conformity

with the Foster story. The fact of the matter is that the af-

fidavit contains no concrete reliable independent evidence

that would indicate that Philip Gaziano or anyone at Sun-

crest was participating in a scheme in the nature of that

described by Henrietta Foster.

Since there is no rational basis for according any

credence to Henrietta Foster’s hearsay statements concern-

ing the activities at Suncrest, Agent Geitgey’s weak at-

tempt to fashion two related schemes at both Suncrest and

Solomon & Teslovich, Inc. must fail.

Likewise, Henrietta Foster’s statements to the effect

that Philip Gaziano had told her that the two manila

envelopes described in paragraph number seven of the af-

fidavit contained Solomon & Teslovich business records

which were hot and incriminating to Solomon & Teslovich

are patently unreliable. First of all, these allegations made

by Henrietta Foser cannot be deemed to be incriminating

’

10

in any way to her. Therefore, her statements cannot be

regarded as reliable on that basis. Second, the comments

made by Philip Gaziano are nothing more than second

hand hearsay. Not only are there no corroborating facts to

substantiate Henrietta Foster’s reliability, but there are in

addition no corroborating facts to substantiate Philip Ga-

ziano’s statements. Thus, one cannot rely on these state-

ments to establish probable cause.

Additionally, there is no indication within the affidavit

itself that the records from the two manila envelopes were

actually Solomon & Teslovich business records. The only

evidence to substantitate that belief are the statements

made by Philip Gaziano and the records themselves. There

is no attempt made within the affidavit to establish the

reliability of Philip Gaziano, thus, these statements must be

disregarded. As to the records themselves, there is nothing

within the affidavit which indicates that these records ac-

tually came from Solomon & Teslovich, Inc., or that the

notations or writings contained on them were placed there

by Solomon & Teslovich. It is just as conceivable that

these were records which were incriminating to Philip Ga-

ziano personaliy. Otherwise, he would have had no reason

to want to destroy those documents. It could be that the

more rational conclusion to be reached from the facts as

presented by the affidavit is that Philip Gaziano was con-

ducting some type of fraudulent scheme on his own for his

own benefit while an employee at Solomon & Teslovich

without their knowledge. Upon forming his own business

at Suncrest, he merely continued those fraudulent prac-

tices in his new business. There is nothing within the af-

fidavit to suggest that any scheme was ongoing at Sulo-

mon & Teslovich apart from Gaziano.

In summary, in analyzing the affidavit in light of the

totality of circumstances standard established by Gates,

11

supra, the magistrate in this case had no basis upon which

to conclude that there was a fair probability that evidence

of a crime would be found on the business premises of

Solomon & Teslovich in December of 1979. Considering

the affidavit as a whole, including the veracity and basis of

knowledge of persons supplying hearsay information,

namely Henrietta Foster and Philip Gaziano, there is not

sufficient corroboration of the details of the information

supplied to grant a substantial basis for crediting the hear-

say presented within the affidavit. Therefore, the search

warrant in this case should not have been issued and the

evidence seized as a result of the search pursuant to that

warrant should have been suppressed.

The search warrant issued in this case authorized the

seizure of

business records located at Solomon &

Teslovich, Inc., and which pertain to the

business activities from January 1, 1975 to pre-

sent of Solomon & Teslovich, Inc., but limited to

all cash receipt and disbursement journals and

ledgers, checks, wire transfers, books of ac-

count; in addition thereto any other writings per-

taining to Solomon & Teslovich, Inc., which

reflect payments to employees or agents of

unions, United States Steel, Penndot, or other

business or governmental entities . . .

In executing this search warrant, agents of the FBI

seized the personal accounting workpapers belonging to

Frank Lucas. Frank Lucas was not an employee of Solo-

mon & Teslovich, Inc., but had contracted with Solomon

& Teslovich, Inc., to prepare their federal income tax

returns. He maintained a private office on the premises of

12

Solomon & Teslovich, Inc., to which he had a key, and

maintained a private file cabinet within that office in

which he kept his personal files. He kept the file cabinet

locked and maintained the only key to the cabinet. Within

this private file cabinet, Frank Lucas kept his workpapers

used in preparing the tax returns for Solomon & Teslo-

vich, Inc., as well as for other of his clients. These per-

sonal workpapers were seized by the FBI pursuant to the

search warrant on December 19, 1979. Since these

workpapers were the personal property of Frank Lucas

rather than Solomon & Teslovich, Inc., and clearly fell

outside the scope of the search warrant, they should have

been suppressed as illegally seized evidence.

It is clear within the law that an accountant’s

workpapers are his own personal property. United States

v. Fisher, 352 F.Supp. 731 (E.D. Pa. 1972), affirmed, 500

F.2d 683 (3rd Cir. 1974). Frank Lucas himself testified to

the fact that the workpapers that were seized were his own

personal records. In addition, both Agent Joseph Lawler

and Agent James Vighetti of the IRS testified that the IRS

considers accountant workpapers to be the property of the

accountant rather than the company to which they per-

tain. Thus, it is clear that these seized workpapers be-

longed to Frank Lucas and were his records, rather than

being the business records of Solomon & Teslovich. As a

result, the search warrant issued in this case did not

authorize their seizure.

One of the chief evils which the Fourth Amendment was

designed to eliminate was the use of general searches. As

was held in Marron v. United States, 275 U.S. 192, 195, 48

S.Ct. 74, 75, 72 L.Ed. 231 (1927), “general searches have

long been deemed to violate fundamental rights. It is plain

that the Fourth Amendemnt forbids them.”

13

It was because of the widespread use of Writs of As-

sistance issued to revenue officer, while under English

rule, that the drafters of the Constitution deemed it to be

necessary to require that no warrant be issued unless pro-

bable cause, supported by oath or affirmation, be shown

to a judicial officer and to require that the place to be

searched and the persons or things to be seized be des-

cribed with particularity.

The requirement that warrants shall particularly

describe the things to be seized makes general

searches under them impossible and prevents the

seizure of one thing under a warrant describing

another. As to what is to be taken, nothing is left

to the discretion of the officer executing the war-

rant. /d. 275 U.S. 196, 48 S.Ct. 76.

In Marron, supra, the Court held that a search warrant

authorizing the search of premises for intoxicating liquors

and articles used for the manufacture of intoxicating li-

quors did not authorize the seizure of ledgers showing in-

ventories, receipts or expenses. Because the Fourth

Amendment specifically limits searches and seizures to

those things specifically and particularly described, the

Court held that the seizure of things that were not par-

ticularly described was not authorized by the warrant and

was prohibited by the Fourth Amendment.

Another case recently affirmed the principles estab-

lished in Marron, in Walter v. United States, 4478 U.S.

649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). In Walter,

supra, it was held that when a search is authorized by a

search warrant, the scope of the search is limited by the

terms of its authorization and the Fourth Amendment

prohibition of general searches prevents the seizure of one

thing under a warrant describing another.

14

Under the principles enunciated by the Court in these

cases, the seizure of any document or other article which

was not particularly described in the search warrant issued

in this case violates the Fourth Amendment. Consequent-

ly, any article which was seized on December 19, 1979, and

which was not particularly described in the search warrant

should have been suppressed.

Since the search warrant in this case authorizes only the

seizure of the business records of Solomon & Teslovich,

Inc., pertaining to the business activities of Solomon &

Teslovich, Inc., the accountant workpapers of Frank

Lucas are not specifically and particularly described in the

warrant. Therefore, the seizure of those personal work-

papers was outside the scope of the warrant and in viola-

tion of the Fourth Amendment. As a result, they should

have been suppressed.

In the present case, the government seeks to introduce

the very same evidence seized in violation of the search

warrant. The government did not discover the documents

from other, independent means. Yet, the government

asked the court to believe that although it already had the

documents and microfilmed them, it didn’t look at them;

it obtained these very same documents from an entirely in-

dependent source, the grand jury subpoena. Such asser-

tions, as in United States v. Griffin, 502 F.2d 959 (6th

Cir., 1973), cert. denied, 419 U.S. 1050 (1974), are beyond

judicial review and their acceptance by the court would

undercut the search warrant requirement of the Fourth

Amendment.

The government has tried the same tack before without

success. In one of the first cases to enunciate the inde-

pendent source exception, Si/verthorne Lumber Co. vy.

United States, 251 U.S. 385 (1920), the government had

15

indicted and arrested the defendants. While the defen-

dants were in custody, members of the Department of

Justice conducted a warrantless search of the company of-

fices and took all documents. Before returning the

documents, the government photocopied them and

reframed the indictment. Then the government served sub-

poenas on the defendants to produce the originals. When

the defendants refused to produce the same documents the

government already had copied, they were found in con-

tempt of court. This Court found that the independent

source rule did not apply in this situation and viewed the

government’s position with derision:

It is that although, of course, its seizure was an

outrage which the government now regrets, it

may study the papers before it returns them,

copy them, and then may use the knowledge that

it has gained to call upon the owners in a more

regular form to produce them. . .

251 U.S. at 391,

Obviously, then, the government cannot extricate itself

from the illegality of its actions by reliance on these excep-

tions to the exclusionary rule. Frank Lucas’ work papers

should have been suppressed.

The Third Circuit found that the appellant lacked stand-

ing to object to the search of the room that the corpora-

tion allowed their CPA to use. The Court held that the

papers seized belonged to the accountant and that the

room, even though it was on the premises of Solomon and

Teslovich, Inc., was a room that the Certified Public Ac-

countant used and therefore, the appellant lacked the

requisite standing to object to the search.

16

It is abundantly clear that Mancusi v. DeForte, 392 U.S.

364, 20 L.Ed.2d 1154, 88 S.Ct. 2120 (1968), gives standing

to the appellant to object to the search based on both the

items seized and the premises searched.

It is, therefore, clear that the Third Circuit’s reliance

upon lack of standing is totally without merit and should

be reversed.

Issue IV

Rule 41(d) of the Fed. R.Crim.P. provides that upon a

search and seizure pursuant to a warrant, a written inven-

tory of any property taken must be made and filed with

the return. The written inventory returned with the

warrant in this case was not sufficient to satisfy the re-

quirements of Rule 41(d). First, the written inventory,

which was prepared by Agent Gerry Pino of the FBI does

not indicate on its face that the inventory was taken in the

presence of the applicant for the search warrant, Agent

Richard Geitgey, and the person from whose possession or

premises the property was taken, or in the presence of at

least one credible person, as is required by Rule 41(d). Ad-

ditionally, while the written inventory was signed by Agent

Pino, the written inventory was not verified by him under

oath as required by the rule. Thus, it is apparent that the

written inventory filed with the return in this case did not

meet the procedural requirements of Rule 41(d).

In addition to not satisfying the procedural require-

ments of Rule 41(d), the inventory filed in this case did not

list the items taken with the degree of specificity required

to inform the magistrate precisely of what documents were

seized. An examination of the written inventory indicates

that the documents were listed according to box numbers.

For example, on page one of the written inventory, it is in-

17

dicated that box number two contained records of Solo-

mon & Teslovich regarding financial matters. There is no

explanation as to how many documents are contained in

this box or a specific designation for each of these

documents. Many of the other items listed within the in-

ventory are similarly vague. Furthermore, some of the

boxes are even classified as containing “miscellaneous

documents.”

It is apparent that this written inventory gives neither

the magistrate nor the person from whose possession the

property was taken an adequate accounting or listing of

the property taken. Thus, it would be impossible for a per-

son aggrieved by the search to make any type of specific

motion for return of property or motion to suppress based

upon this inventory. Likewise, should the government be

compelled to return the property seized, it would be im-

possible for the owner to determine if every item seized

had been returned. Therefore, the intent and purpose of

Rule 41(d) has not been satisfied by the written inventory

filed in this case.

As a result of the failure of the government to execute a

proper inventory in this case, every document seized by the

government pursuant to the search warrant issued in this

case should be returned pursuant to Rule 4l(e) of the

Fed.R.Crim.P. Only by returning all of the items seized

can the lawful owners be assured of an accurate and full

accounting of the property taken from them. Anything

less than a full return would leave Solornon & Teslovich in

the untenable position of not having an accurate account-

ing of the documents seized and those returned to them.

Rule 41(e) also provides that if property is required to be

returned to the owners, that property shall not be admissi-

ble as evidence at any hearing or trial. Therefore, all of the

18

evidence seized pursuant to the search warrant in this case

should have been suppressed.

CONCLUSION

For all of the reasons set forth herein, this Court should

grant the petition for writ of certiorari to the United States

Court of Appeals for the Third Circuit, and should resolve

these issues which are of fundamental importance to the

criminal justice system.

STANLEY E. PREISER

FREDERICK D. FAHRENZ

Preiser & Wilson, L.C.

1012 Kanawha Boulevard, E.

Post Office Box 2506

Charleston, WV 25329

(304) 344-9651

Counsel for Petitioner,

George R. Teslovich

January 25, 1984

APPENDIX A

UNITED STATES COURT OF APEPALS

FOR THE THIRD CIRCUIT

Nos. 83-5312/13 and 83-5339

UNITED STATES OF AMERICA

v.

GEORGE A. SOLOMON,

Appellant in No. 83-5312

GEORGE M. TESLOVICH, JR.,

Appellant in No. 83-5313

GEORGE R. TESLOVICH,

Appeilant in No. 83-5339

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

(D.C. Criminal Nos. 82-00171-01/03/02)

District Judge: Hon. Donald E. Ziegler

Before: GIBBONS and SLOVITER, Circuit Judges

and GREEN, District Judge

JUDGMENT

These causes came on to be heard on the record from

the United States District Court for the Western District of

Pennsylvania and were submitted under Third Circuit

Rule 12(6) on December 2, 1983.

2a

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgments of the said

District Court entered April 20, 1983 in Criminal No.

82-171-03, entered on April 22, 1983 in Criminal No.

82-171-01 and entered April 28, .983 in Criminal No.

82-171- 02, appealed here respectively, be and the same

are, hereby affirmed.

/s/

N. Elizabeth Ferguson

Deputy Clerk

Dated: December 5, 1983

3a

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 83-5312/13 and 83-5339

UNITED STATES OF AMERICA

v.

GEORGE A. SOLOMON,

Appellant in No. 83-5312

GEORGE M. TESLOVICH, JR.,

Appellant in No. 83-5313

GEORGE R. TESLOVICH,

Appellant in No. 83-5339

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA

(D.C. Criminal Nos. 82-00171-01/03/02)

District Judge: Hon. Donald E. Ziegler

Submitted Under Third Circuit Rule 12(6)

December 2, 1983

Before: GIBBONS and SLOVITER, Circuit Judges

and GREEN, District Judge*

(Filed: Dec 5 1983)

*Hon. Clifford Scott Green, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

A da

MEMORANDUM OPINION OF THE COURT

GIBBONS, Circuit Judge:

George A. Solomon, George R. Teslovich and George

M. Teslovich, Jr. pled guilty to charges of income tax eva-

sion, reserving the right to appeal from the denial of their

motion to suppress evidence. See United States v. Mos-

kow, 588 F.2d 882, 885-90 (3d Cir. 1978). They contend

that the books and records seized from the office of Solo-

mon & Teslovich, Inc. on December 19, 1979 should have

been suppressed.

The affidavit used in applying for the search warrant

relied on information contained in a package of records in

the possession of Henrietta Foster, which she was holding

for Philip Gaziano. The appellants contend that opening

the package and the records was a warrantless search in

violation of the fourth amendment. Only Gaziano had any

expectation of privacy in the package. See Rakas v. Ii-

linois, 439 U.S. 128, 132-49 (1978).

Appellants contend that the affidavit was legally insuffi-

cient in establishing probable cause for the issuance of a

warrant. We have examined it in light of the governing

standards announced in //linois v. Gates, ___ U.S. __-__,

103 S.Ct. 2317, 2332 (1983), and find it to be adequate.

Appellants contend that the warrant was insufficiently

specific to limit the books and records subject to seizure.

See United States v. Johnson, 690 F.2d 60, 63-66 (3d Cir.

1982), cert. denied, 103 S. Ct. 1212 (1983); see United

States v. Christine, 687 F.2d 749, 752-53 (3d Cir. 1982).

Adequacy of the description depends on the nature of the

suspected criminal activity, the nature of the items to be

Sa

seized, and the difficulty of specifying volumes of records

covering an extended period. In this case the warrant au-

thorized the seizure of

business records located at Solomon & Teslovich

Inc. and which pertain to the business activities

from Jan. 1, 1975 to present of Solomon & Tes-

lovich, Inc. but limited to all cash receipt and

disbursement journals and ledgers, checks, wire

transfers, books of account; in addition thereto

any other writings pertaining to Solomon and

Teslovich, Inc. which reflect payments to em-

ployees or agents of unions, United States Steel,

PennDot or other business or governmental en-

tities.

The warrant identified certain documents — journals,

ledgers, checks, wire transfers, and books of account —

by type, and qualified “any other writings” as pertaining to

payments to persons or entities with whom Solomon and

Teslovich dealt. Under these circumstances, we conclude

that the warrant was sufficiently specific.

Appellants contend that the seizure of work papers

prepared by an independent accountant, Frank Lucas,

from a separate office, for which Lucas had a key, and in

which he kept work papers about other clients, was be-

yond the scope of the warrant, and violated the fourth

amendment. Appellants had no property interest in the

work papers and no expectation of privacy with respect to

them. See Rakas v. Illinois, 439 U.S. 128, 132-49 (1978).

Finally, appellants contend that the agents who made

the seizure failed to file an inventory satisfying Fed. R.

Crim. P. 41. We find no prejudice flowing from any such

failure and therefore no ground for suppressing the evi-

dence. See United States v. Hall, 505 F.2d 961, 964 (3d

Cir. 1974).

6a

The judgment of sentence will, therefore, be affirmed.

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

/s/ John Gibbons

Circuit Judge

7a

APPENDIX C

Search Warrant

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

United States of America ) Docket No.

)

VS. ) Case No.

)

SOLOMON & TESLOVICH, INC. ) SEARCH

HEADQUARTERS ) WARRANT

)

To ROBERT C. MITCHELL

U.S. Magistrate

Affidavit(s) having been made before me by Richard R.

Geitgey, S/A, F.B.I. that he has reason to believe that on

the premises known as Solomon & Teslovich, Inc., truck-

ing and excavating contractors located on Route 21, ap-

proximately seven miles east of Masontown and 3.7 miles

west of PA Route 40 and 21 as they intersect in Union-

town. The site includes an asphalt parking lot adjacent to

a fenced in compound containing heavy equipment and

two buildings, one which appears to be a blue garage and

maintenance buildings, the other a two story office build-

ing with some garages beneath. The buildings are located

across the street from Richard’s Restaurant and Kolenick’s

Sunoco Station.

in the Western District of Pennsylvania there is now being

concealed certain property, namely business records

located at Solomon & Teslovich Inc. and which pertain to

the business activities from Jan. 1, 1975 to present of

Solomon & Teslovich, Inc. but limited to all cash receipt

and disbursement journals and ledgers, checks, wire trans-

fers, books of account; in addition thereto any other

writings pertaining to Solomon and Teslovich, Inc. which

reflect payments to employees or agents of unions, United

States Steel, PennDot or other business or governmental

entities.

and as I am satisifed that there is probable cause to believe

that the propery so described in being concealed on the

person or premises above described and that grounds for

application for issuance of the search warrant exist as

stated in the supporting affidavit(s).

You are hereby commanded to search within a period of

Ee (not to exceed 10 days) the

person or place named for the property specified, serving

this warrant and making the search (in the daytime (6:00

a.m. to 10:00 p.m.) at any time in the day or night*) and

if the property be found there to seize it, leaving a copy

of this warrant and receipt for the property taken, and

prepare a written inventory of the property seized and

promptly return this warrant and bring the property

before Hon. Robert C. Mitchell as required by law.

Dated this day of re

Judge (Federal or State Court of

Record) or Federal Magistrate.

*The Federal Rules of Criminal Procedure provide: “The warrant

shall be served in the daytime, unless the issuing authority, by ap-

propriate provisions in the warrant, and for reasonable cause shown,

authorizes its execution at any other than daytime.” (Rule 41(c)). A

statement of grounds for reasonable cause should be made on the af-

fidavit(s) if a search is to be authorized at any time and/or night” pur-

suant to Rule 41(c).

9a

Affidavit for

Search Warrant

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

Magistrate’s Docket No.

UNITED STATES OF AMERICA Case No. 79 359

VS.

)

)

)

) AFFIDAVIT

)

)

)

SOLOMON & TESLOVICH INC. SEARCH

HEADQUARTERS WARRANT

BEFORE

HONORABLE ROBERT C. MITCHELL PITTSBURGH, PA

The undersigned being duly sworn deposes and says:

That he (has reason to believe) that (on the premises

known as) Solomon & Teslovich Inc., trucking and ex-

cavating contractors located on Route 21, approximately

seven miles east of Masontown and 3.7 miles west of PA

Route 40 and 21 as they intersect in Uniontown. The site

includes an asphalt parking lot adjacent to a fenced in

compound contaning heavy equipment and two buildings,

one which appears to be a blue garage and maintenance

building, the other a two story office building with some

garages beneath. The buildings are located across the

street from Richard’s Restaurant and Kolenick’s Sunoco

Station.

in the Western District of Pennsy!vania there is now being

concealed certain property, namely business records

located at Solomon and Teslovich Inc. and which pertain

10a

to the business activities from Jan. 1, 1975 to present of

Solomon & Teslovich, Inc. but limited to all cash receipt

and disbursement journals and ledgers, checks, wire-

transfers, books of account; in addition thereto any other

writings pertaining to Solomon and Teslovich Inc. which

reflect payments to employees or agents of unions, United

States Steel, PennDot or other business or governmental

entities which are property which constitutes evidence of

the commission of crime that is violative of Title 18,

U.S.C., §1962(c); engaging activities and enterprise affect-

ing interstate commerce and conducting the affairs of such

enterprise through a pattern of racketeering activity, to

wit, bribery in violation of the laws of the Commonwealth

of PA.

SEE ATTACHED AFFIDAVIT

/s/ Richard R. Geitgey

RICHARD R. GEITGEY

Special Agent, F.B.1.

Sworn to before me, and subscribed in my presence.

Dec. 18, 1979

/s/ Robert C. Mitchell

United States Magistrate

lla

AFFIDAVIT

The undersigned, being duly sworn, hereby deposes and

says:

1. My name is Richard R. Geitgey, and I have been a

Special Agent of the Federal Bureau of Investigation for

eight years, and I am currently assigned to the Pittsburgh

Office of the Federal Bureau of Investigation.

2. Since July, 1979, I have been participating in an in-

vestigation of allegations of possible violations of Title 18,

U.S. Code Section 1962(c), arising both from commercial

bribery of employees of public utility companies and steel

producing companies, who, by their positions, can in-

fluence their employer to accept goods and services i.e.

steam coal and metallurgical coal, from certain suppliers

and from bribery of agents and/or employees of unions

and the Pennsylvania Department of Transportation per-

taining to highway construction.

3. During the course of my investigation, I have

developed the following information with respect to activi-

ty of George Solomon and George Teslovich, doing

business as Solomon and Teslovich, Inc., Trucking and

Excavating Contractors, Masontown, Pennsylvania

(hereafter “S and T”).

4. Henrietta Foster, an employee and Secretary of Sun-

crest Environmental Resource, Inc. (SERC) — a coal

brokerage company which was engaged in shipping coal to

the Hatfield Power Station, West Penn Power — stated to

me that SERC was engaged in a fraudulent scheme to sup-

ply low quality coal to Hatfield Power Station at premium

prices. Ms. Foster stated that she personally took part in

the scheme which provided as follows:

Phillip Gaziano, President and owner of SERC, would

12a

instruct her to prepare expense checks to various persons,

some of which were employees of SERC. Gaziano and she

would then forge the signature of the employees and

Foster would tender the checks for cash at the local banks

in Uniontown, Pa. and receive cash in exchange. Gaziano

would then use the cash to pay off an individual by the

name of Alfred Royster, Jr., an employee of West Penn

Power’s Hatfield Station, usually totaling somewhere in

the area of $1500 to $3000 per payment.

In return for the cash, Royster used his position as a

barge unloader at the Hatfield Power Station to .

manipulate coal samples, barges and/or coal and barge

data with receipt to SERC’s such that Gaziano would be

paid more than his coal was actually worth. Henrietta

Foster noted that she became acquainted with Royster

because of his frequent telephone contact with SERC’s of-

fice. Royster would call her to get the numbers of the

SERC coal barges being supplied into Hatfield. Foster

would often call the barge numbers into an answering

service if Royster failed to call before 5:00 P.M., and

Royster would check in with the answering service to get

the barge numbers.

This information is considered reliable because Henriet-

ta Foster is incriminating herself with this information.

Additionally, Gaziano has stated to me he barely knew

Royster. But, it has been established through a local travel

agency that Gazie\o did in fact send Royster on a trip to

New York and abi.\ad and paid for the trip out of SERC

funds. Additionally. a local answering service has con-

firmed to me the uve of that service to pass four-digit

(barge) numbers to a “Fred” who called for SERC infor-

mation. Moreover, an official at the Hatfield Power Sta-

tion has confirmed to me that Royster is in a position to

affect barge samples and has been under suspicion for

13a

such activities. Furthermore, Gaziano’s actions since an

investigation of SERC began indicate guilty knowledge; an

employee of S and T has stated to me that she altered

SERC records at Gaziano’s request which were supplied in

response to a grand jury subpoena investigating SERC.

Lastly, a consensual monitoring of a conversation between

Gaziano and Foster contained attempts by Gaziano to

convince Foster to refrain from mentioning Royster or the

scheme in her then pending grand jury appearance.

5. Ms. Foster also informed me that on certain occa-

sions, Gaziano would need large amounts of cash or

cashier’s checks. In order to acquire this cash, Ms. Foster

stated he would have her issue checks to a company and he

told her he would then forge an endorsement on the back

of the check, take and cash the check at Second National

Bank of Masontown and use the cash for personal and

business expenses.

6. I personally interviewed Philip Gaziano in July of

1979 and he stated at that time that until October of 1977,

he was an accountant for Solomon and Teslovich (S and

T), Inc. His job entailed handling accounts payable and

accounts receivable, along with the general accounting

operations required of a general contractor. Gaziano had

earlier stated to reporters for the Uniontown Morning

Herald — in an article appearing on October 1, 1978 —

that at S and T, under the direction of his father-in-law,

George Teslovich, and particularly, George Solomon (the

co-owners of S and T), he had learned every phase of the

company’s operations. He stated that Solomon and

Teslovich were “great teachers”.

7. Henrietta Foster also stated that in November of

1977, when she first became employed for Gaziano as a

secretary-bookkeeper, Gaziano gave to her two manila

packages, which Gaziano told Foster contained records of

l4a

Solomon and Teslovich, Inc., business transactions, which

occurred while Gaziano was employed at S and T. Ga-

ziano explained to Foster that the records were “hot” and

were very incriminating to S and T. Gaziano went on to

explain that if the records got into the “wrong hands”, the

records could cause a “fire”.

8. Henrietta Foster further stated that Gaziano was

very concerned about the FBI’s inquiries pertaining to the

operations of SERC and on July 17, 1979, asked Foster to

retrieve the records, which she had been keeping for Ga-

ziano, pertaining to S and T. Foster explained to Gaziano

that the records were at the home of her son in Oil City,

Pa. and that it would take at least one day to retrieve the

records. Gazianc instructed her to retrieve the records and

return them to him for destruction.

9. I was able to verify the existence of Gaziano’s “hot”

records of S and T when Henrietta Foster voluntarily pro-

duced the records for the undersigned. In my presence, the

two packages were opened, and documents pertaining to S

and T and Redstone Hauling Co., were reflected

throughout the two packages. Those records pertaining to

1976 and 1977 were copied in my presence and then re-

turned to Ms. Foster who stated she returned them to Ga-

ziano.

10. The “hot” records were reviewed by myself and

Special Agent Thomas Powers. Incorporated herein by

reference and attached hereto as Appendix A is a more

detailed analysis of the Gaziano file.

Checks made out to certain companies were contained

in the files and it appears that the checks were not being

sent to the actual payees because:

(a) Notations along the check stub as well as

notations on separate ledger sheets indicated that

lSa

although one payee was named on the check,

disbursements in the amount of the check were

not made to the payee but rather were made to

individuals identified by name or initials on the

check stub or separate ledger sheet.

(b) When Gaziano originally handed the file

to Henrietta, he was careful to note that the

records pertained to business transactions of S

and T, were “hot”, were very incriminating to S

and T, and if the records got into the wrong

hands, the records could cause a “fire.”

11. The names and/or intitals on the ledger sheet

and/or check stubs indicate payments to various in-

dividuals including “G. Solomon”, “G.S.”, “G.

Teslovich”, “F.T.”, “J.A.”, “Anderson”, “Yurick”,

“C.Y.”, “Conners”, and “T. Pecura”.

12. I have contacted an official who oversees energy

purchasing contracts at United States Steel (USS) and who

stated to me that S and T, and one of its subsidiaries, GAL

Construction Co., had substantial contracts with USS and

USS’s Robena Coal Preparation Plant. Through inquiries

at USS and Robena’s Preparation Plant, I was told that in-

dividuals by the names John Anderson and Charles Yuric

hold supervisory positions for USS in areas which, accord-

ing to the information supplied by the USS official noted

above, would involve S and T’s contracts with USS. The

names and initials “J.A.”, “C.Y.”, “Yurick” and “Ander-

son” all appear on the disbursement sheets in the Gaziano

file. Additionally, the name “Anderson”, and _ his

telephone number at USS appeared in a small telephone

book of Gaziano’s held by Henrietta Fosters.

13. I have also been told through inquiry at the Penn-

Dot facility that an individual with the name “Conners”

is in charge of new highway construction. “Conners” ap-

l6a

pears in the disbursement sheets and George Solomon, co-

owner of S and T stated to me that S and T had at least one

large highway construction project with PennDot.

14. George Solomon also told me that he often uses

union labor for his construction jobs and that he deals

often with the business manager, Tom Pecora, of

Laborer’s Union Local 1308. The name “T. Pecura” ap-

pears on the disbursement sheets.

15. Although the names “Anderson”, “Conners” and

“Arnie” appear on stubs for checks issued either to

Rathway Trucking Co. or Clinto Fuel and Transportation

Co., persons at those companies stated to me that no one

by those names had ever worked there.

16. I interviewed Brenda Royster of the Second Na-

tional bank of Masontown who is a teller at said bank and

who stated to me that an individual by the name of Pat

Burns who is known to her as an employee of S and T ap-

pears at her teller window and cashes S and T checks

payable to other companies — with scribbled en-

dorsements — in amounts so large that the teller often has

to get additional cash from the vault.

17. I talked to George Solomon who informed me that

Redstone Hauling and S and T shared corporate offices on

Route 21 between Masontown and Uniontown. Mr. Solo-

mon stated that although S and T and Redstone Hauling

were separate companies because of the requirements of

the Pennsylvania Public Utilities, they were, for all prac-

tical purposes, one and the same company. I personally

visited the corporate offices of S and T which I observed

to be located on Route 21, seven miles east of Masontown

and 3.7 miles west of Pa. Routes 40 and 21 in Uniontown.

The site includes an asphalt parking lot adjacent to a

fenced-in compound containing two buildings, one of

17a

which is an equipment storage and maintenance facility;

the other is a two story building containing the corporate

offices. While in the corporate office building, I personal-

ly observed filing cabinets containing the corporate

records.

18. Solomon and Teslovich has contracts to provide

coal to USS and has provided coal to West Penn Power. I

have been told by officials of both USS and West Penn

Power that these business relations existed during times

relevant to this investigation and further, that both com-

panies engage in business which travels in and affects in-

terstate commerce.

19. On the basis of the information provided by Philip

Gaziano, Henrietta Foster, George Solomon, and as con-

firmed by interviews and record examination, it is my

belief that George Solomon and George Teslovich, Inc.,

are engaged in an activity which constitutes a violation of

Title 18, United States Code, Section 1962(c). And further

that there is evidence of the commission of said criminal

activities located on the premises of Solomon Teslovich,

Inc./Redstone Hauling, Inc., whose corporate offices are

located on Route 21 between Uniontown and Masontown,

Pa. Said evidence includes S and T’s cash receipt and

disbursement journals and leders, checks, wire-transfers

and books of account; in addition thereto, any other

writings which reflect payments to employees or agents of

unions, USS, PennDot or other business or governmental

entities.

/s/ Richard R. Geitgey

/s/ Robert C. Mitchell

18a

APPENDIX “A” TO AFFIDAVIT OF

SPECIAL AGENT RICHARD R. GEITGEY

When Special Agent Accountant Thomas Powers and

myself reviewed the documents maintained by Foster for

Gaziano (the Gaziano file), the following observations

were made: Seventy-two pages of documents were copies

in the Pittsburgh Office of the FBI.

Pages 6 and 7 of the Gaziano file contained accounting

work papers reflecting business activity from May 25

through June 29, 1977. The two pages reflected allocation

of funds to the following individuals: G. Solomon; G.

Teslovich, “J.A.” Conners; C.Y.; Andy B.; Boz Z.; Po-

lice Party; Goldman; T. Pecura; A.K.; G.S.; and G.T.

McDonald; Salty; along with other minor allocations.

Pages 6 and 7 appear as work papers, inasmuch as no ac-

count is noted on the two pages, and entries are made for

the days of May 25, May 27, June 9, June 15, June 16, June

22, June 26, and June 29. The work papers began with a

specific entry of an irregular amount of money, such as

$10,119.38, and disbursements were reflected from a given

entry working toward a zero balance. Other documents in

the Gaziano file supported where the cash was generated

in order to make allocations to the individuals listed on

Pages 6 and 7. For example, Page 6 entry, May 25, in the

amount of $43,875, relates specifically to S and T check

number 57621, dated May 25, 1977, payable to the David

Davis Coal Company, 108 Lang Court, Pittsburgh, PA, in

the amount of $43,875. Page 4 is a voucher copy of the

aforementioned check, and critic notations are found on

the voucher copy identical to the entries made on Page 6

under the amount of $43,875. Written on the voucher

copy of the check (Page 4), we found the initials ‘G.S.”

next to the handwritten entry of $4,400 and the initials

19a

“G.T.” written next to another handwritten notation of

$4,400. Additionally, on the same document, were the ini-

tials “J.A.” next to the handwritten notation of $35,000.

And lastly, we have the handwritten entry of “MIS” next

to the amount of $71. A the bottom of the voucher copy,

Page 4, a total of $43,871 reflects a total $4 short of the

amount of check number 57621. The work papers reflect a

“MISC” of $75 with a handwritten correction from $71 to

$75, therefore, showing a zero balance pertaining to the

disbursement of monies from the check made payable to

the David Davis Coal Company.

On June 9, an entry was made on the work papers in the

amount of $9,151.38. The work papers explain the follow-

ing allocations: T. Pecura - $500; “MISC” - $150; G.S. -

$4,250; G.T. - $4,250, reflecting a zero balance for the

June 9 entry. On Page 44 was found a handwritten piece

of paper listing four Commonwealth of Pennsylvania

checks numbered 0134101, 0134100, 0134102, and

0134105. Another handwritten notation, “Zurick - AM.

INS. CO. ck number 320517 - $993.40,” and one addi-

tional entry, “Fizel Coal and Drilling Co., number 2774,

$552.98.” At the bottom of the handwritten tally was the

total $9,151.38, reflecting receipts from the Common-

wealth of Pennsylvania, Zurick AM. INS. CO., and Fizel

Coal and Drilling Co. On Pages 47 and 48 are found

copies of the aforementioned Commonwealth of Pennsyl-

vania Treasury Department checks, all of which were

issued on June 1, 1977, to Solomon and Teslovich. The

tally found on Page 44 and the checks found on Pages 47

and 48 total the entry found under June 9 on the work

papers.

Another entry was noted on June 9 on the work papers

totaling $5,544. The work papers reflected that G.S.

received $2,770, and G.T. received $2,770, with $4 re-

20a

maining. Page 45 of the Gaziano file reflects a statement

from S and T to Pennsylvania State University, Fayette

Campus, Uniontown, PA, billing Pennsylvania State Uni-

versity $5,544 for dozer a’ 1 grading work done at the

Fayette Campus. A handwritten notation on the billing

noted “PD 6-9-77 #02116300.” The date the check was

noted paid on the aforementioned statement is the same

date used for the entry in the work papers.

On June 15, an entry was made in the work papers in the

amount of $12,000. Below it, we found “G.S. - $2,000;

G.T. - $2,000; G.T. (Renee Chess acct.) - $8,000; and a

zero balance. On Page 63 of the Gaziano file was found a

1976 miscellaneous income, Department of the Treasury -

Internal Revenue Service Form No. 1087-MISC. The

form reflects that S and T, Box 763, Masontown, PA, re-

ceived $8,829.70 in royalties from Raymond N. Chess, RD

1, Box 151, Smithfeld, PA 15478. “Copy B” for the reci-

pient was the copy on Page 63. The total for these royalties

is slightly more than the $8,000 notation in the work

papers dated June 15.

An entry was noted on the work papers for June 22

totalling $9,782.50. Below the entry the following funds

were allocated: “McDonald $500, AK. $3,000, C.Y.

$5,000, Conners $1,000, Misc $282.50” and also noting a

zero balance. On page 49, we found an S&T check number

58194 dated June 22, 1977, made payable to Mitchell

Brothers Klondike Tire Company, Box 706, Masontown,

Pa., in the amount of $9,782.50. On page 50, we found a

notation which was partially illegible “. . . hell Bros Tire”

and the following aiiocaiions noted under the heading:

500.00 McDonald, $3,000 Arnie, $5,000 Yurick, $1,000

Conner. A tally line was drawn and a total of $9,782.50

was noted on page 50 which coincides with the June 22 en-

try on the work papers working backwards to a zero bal-

ance.

2la

Located on the work papers between an entry of May 27

and an entry of June 9, appears the entry of $10,119.38.

Below the entry was the name Goldman $5,782.50, an en-

try “G.S.” $2,166, “G.T.” $2,170. A tally line was drawn

and a zero balance was noted. On page 46 of the Gaziano

file, an adding machine tape was located reflecting the

same entry, $10,119.38. The adding machine tape re-

flected the subtraction of $5,782.50, leaving a remainder

of $4,336.88. Handwritten notations on the adding

machine tape reflected one figure 2,166 and another figure

2,170. These are the exact amounts allocated to G.S. and

G.T. noted on the work papers.

The work papers denote activity for only two months;

however, additional observations were made which reflect

allocations of moneys contrary to the customary ~urpose

for which checks are issued. On page 15 of the Gaziano

file, we found a check dated July 27, 1977, from S&T,

check number 58885, payable to the David Davis Coal

Company, in the amount of $22,212.50. On page 14 of the

Gaziano file, we found a check stub totalling $22,212.50.

The check stub noted that Gregg was allocated $100.00

and Crimbly was allocated $1,658.21. Also noted on the

chéck stub was the initials G.T. 20,000. If all of the nota-

tions found on the check stub are scheduled, we found

that of the $22,212.50, all of its was accounted for on the

check stub with the exception of $454.29. It should be

noted the S&T check stub was in exactly the same amount

$22,212.50 as the check issued to the David Davis Coal

Company on July 27, 1977.

An S&T check number 59469 dated Augsut 19, 1977,

payable to the Clinton Fuel Company, Inc., Saxonburg,

Pa., was issued in the amount of $26,855. On the voucher

copy of the check, we found the handwritten cryptic notes:

G.S. $25,000, G.T. $25,000, Misc $732.47. On page 19 of

22a

the Gaziano file, we found S&T check #59468 dated

August 19, 1977, payable to the David Davis Coal Com-

pany in the amount of $23,877.47. No notations were

found on this voucher copy of the check. However, page

21 of the Gaziano file reflected an adding machine tape

bearing the following figures: $26,855 plus $23,877.47

equals $50,732.47. The adding machine tape equaled the

totals allocated to G.S. and G.T. along with the miscel-

laneous entry of $732.47, which was found in handwritten

notation on check number 59469, payable to Clinton Fuel

Company, Inc.

On page 26 of the Gaziano file, an S&T check number

60440 dated October 13, 1977, made payable to Joki Coal

Company, RD #5, Finleyville, Pa., in the amount of

$42,982.13 was noted along with the handwritten notation

of $500.00 Don Wright.

On October 27, 1977, three S&T checks were issued

totalling $97,145.70. Check number 60861 was made pay-

able to Davis Coal for $25,718.90 and can be found on

page 31. Check number 60859 in the amount of $23,892.30

can be located on page 32, but the payee cannot be iden-

tified due to the poor quality of the copy. The third check

can be located on page 33, number 60860, in the amount

of $47,534.50, and adding machine tape obliterates the

payee on this voucher copy, but the adding machine tape

totals the three previously mentioned checks, noting the

amount of $97,145.70. On pages 29 and 30 of the Gaziano

file, two cashiers’ checks from the Second National Bank

of Masontown, numbers C 50787 payable to George Solo-

mon dated October 28, 1977, in the amount of $23,000

was found in the Gaziano file. The correlation to be drawn

here is that the three previously mentioned checks were

written on October 27, 1977, and the two cashier’s checks

were issued from the Second National Bank of Mason-

23a

town on October 28, 1977, and all five documents appear

in sequence in the Gaziano file, pages 29 through 33.

On page 31 of the file, an S&T check number 59744

dated September 6, 1977, was issued to the Davis Coal

Company in the amount of $18,911. On page 42, S&T

check number 59745 dated September 6, 1977, was issued

to the Clinton Fuel Company, Inc., in the amount of

$17,909. On page 43, an adding machine tape appears

stapled to check number 59745 totalling the two aforemen-

tioned checks, $36,820. Handwritten notations on the ad-

ding machine tape reflect the following: 30,000.00 J.A.,

5000.00 C.Y., 1000.00 Conner. If the $30,000 to J.A. and

the $5,000 to C.Y. and the $1,000 to Conner are sub-

tracted from the $36,820 total of the two aforementioned

checks, a balance of $820 is noted.

On page 53 of the Gaziano file, we found the left half of

a Solomon and Teslovich check to Clinton Fuel and

Transport Company, ¢RD #1, Box 66A, Saxonburg, Pa.,

noting a partial sum to be paid of “33,2. . . .” The voucher

copy of the check contained a handwritten notation “An-

derson $25,000.00 to.” On page 54 of the Gaziano file ap-

pears the right half of the S&T check totalling $33,269.

The check is not dated but the handwritten notation ap-

pears in the center of the voucher copy “. . arch 30 1977.”

Assembling the two sides, the handwritten notation ap-

pears to state “Anderson $25,000.00 to (M)arch 30 1977.”

Page 64 of the Gaziano file reflects an S&T check

number 55803 dated February 25, 1977, to Walters Tire

Service in the amount of $8,655.67. In the center of the

voucher copy of the check is reflected the following hand-

written notations: “1/2 GS 1/2 GT.”

On Page 72, we found a voucher copy of an S&T check

number 59789 dated September 8, 1977, payable to Robert

24a

Rathway Trucking, Perryopolis, Pa., in the amount of

$3,000. Handwritten noiations on the voucher copy were

as follows: 2500.00 Arnie, 500.00 Misc. The two handwrit-

ten notations equal the total of the check which was made

payable to Robert Rathway Trucking.

25a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THE UNITED STATES OF AMERICA,

)

)

Plaintiff, )

)

versus ) Criminal Action

) No. 82-171

GEORGE A. SOLOMON, )

GEORGE R. TESLOVICH and )

GEORGE M. TESLOVICH, JR., )

)

Defendantss. )

TRANSCRIPT OF THE COURT’S FINDINGS OF

FACT AND CONCLUSIONS OF LAW AT

PITTSBURGH, PENNSYLVANIA,

ON WEDNESDAY, JANUARY 19, 1983.

BEFORE: DONALD F. ZIEGLER, United States District

Judge.

APPEARANCES:

J. ALAN JOHNSON end

FREDERICK W. THIEMAN,

633 U.S. Post Office & Court House,

Pittsburgh, Pennsylvania, 15219

appearing on behalf of The United States of America.

26a

FREDERICK D. FAHRENZ,

Preiser & Wilson,

P.O. Box 2506,

1012 Kanawha Boulevard, E.,

Charleston, West Virginia, 24329

appearing on behalf of George R. Teslovich.

STANLEY GREENFIELD,

728 Fifth Avenue,

Pittsburgh, Pennsyivania, 15219

appearing on behalf of George A. Solomon, Defendant.

STANLEY M. STEIN,

707 Law & Finance Building,

Pittsburgh, Pennsylvania, 15219

appearing on behalf of George M. Teslovich, Jr.,

Defendant.

PROCEEDINGS

THE COURT: Good morning, ladies and gentlemen.

This is the case of the United States of America versus

George A. Solomon, George R. Teslovich and George M.

Teslovich, Jr., at Criminal Action No. 82-171, and the

following shall constitute the Findings of Fact and Con-

clusions of Law.

No. 1. Presently before the Court are the motions of

George A. Solomon, George R. Teslovich and George H.

Teslovich, Jr., to suppress the evidence and dismiss the in-

dictment. We will treat all issues as they pertain to all

Defendants since all Defendants have joined in the mo-

tions.

No. 2. The first issue that we must resolve is whether

the delivery of documents to the F.B.I. by Henrietta

27a

Foster, the opening of two folders and the delivery of

copies to a governmental agent somehow implicates the

Fourth Amendment and, if so, whether exigent circum-

stances obviated the need to obtain a search warrant. We

hold that the issue is controlled by the United States vs.

Valen, 479 F.2d, 467, Third Circuit, 1973. See also Meister

vs. CIR, 504 F.2d, 505, Third Circuit, 1974.

No. 3. The record establishes no governmental involve-

ment in the procurement of records later determined to en-

compass the years 1976 and 1977. The documents were

given to Ms. Foster by Phillip Gaziano. She delivered the

envelopes to the United States on her own on July 17,

1979. We also find no governmental involvement in the

opening of the records so as to implicate the Fourth

Amendment. The envelopes were opened and copied by

Ms. Foster after a Federal prosecutor and an agent refused

to even touch the folders. We find that use of a photo-

copying machine at the Federal Bureau of Investigation by

Ms. Foster and the supplying of two duplicate envelopes

by the Bureau does not constitute governmental involve-

ment so as to implicate the Fourth Amendment. Ms. Fos-

ter was at no time an agent of the United States or acting

at its behest or direction. This was a private search and

seizure. Or stated another way: It was evidence obtained

by the United States from an independent source. United

States vs. Valen, supra; Burdeau vs. McDowell, 256 U.S.

465, 1921.

No. 4. Even if we assume, arguendo, governmental

seizure when the copies were delivered to Agent Geitgey,

and assuming further that Defendants have standing to

raise the issue, we find that exigent circumstances preclude

the necessity of a search warrant. Time was of the essence

when Ms. Foster appeared at the Federal Bureau of Inves-

tigation in the afternoon of July 17. She had been in-

28a

structed by Gaziano to retrieve the documents forthwith,

and her appearance in Pittsburgh gave her only a brief

period to copy the documents and return them to her em-

ployer. Insufficient time was available to secure a warrant

under the circumstances, and, thus, we find that exigent cir-

cumstances permitted Agents of the United States to assist

in copying the documents, receive the copies and review

them in due course. As we have noted, however, there was

no search or seizure within the ambit of the Fourth

Amendment because we find the search and seizure to be

private in character, and the United States vs. Walter, 447

U.S. 649, 180, is not to the contrary. Accordingly, the

contention of Defendants in this regard must be denied.

No. 5. The next question we must resolve is whether the

search .arrant signed by a Federal Magistrate on Decem-

ber 18, 1979, is based on probable cause. We find by ex-

amining the affidavits, the appendix and Exhibit 1, that

the warrant was based on such cause. First, it is important

to note that the Magistrate made his finding of probable

cause based on the affidavit, the appendix and Exhibits.

The affidavit refers to the appendix, and the appendix

refers to the records marked here as Exhibit 1. The law is

clear that the Magistrate may refer to such an attachment

if they are referred to in the affidavit, as here.

No. 6. The most recent discussion of probable cause to

obtain a search warrant is addressed in United States vs.

Alfonso, No. 82-1064, Third Circuit, 1982. There, the

Court of Appeals rehearsed the test of reliability and

knowledge set forth in Aguilar and Spinelli. Applying

these precepts, we find that the reliability and knowledge

of Henrietta Foster was corroborated by subsequent in-

vestigation as recited in the affidavit so as to authorize a

finding of probable cause by the Magistrate. The two-

pronged test of Federal law has been satisfied. See United

States vs. Bush, 647 F.2d 357, Third Circuit, 1981.

29a

No.7. Our finding of probable cause is based on the

following high-lighted facts as set forth in the affidavit:

(A) Henrietta Foster was employed by Suncrest En-

viromental Resources, Inc., as a secretary-bookkeeper;

(B) Phillip Gaziano was the President and owner of

Suncrest and the son-in-law of George Teslovich;

(C) Gaziano worked as an accountant for Solomon &

Teslovich, Inc., until November of 1977;

(D) George Solomon and George Teslovich were co-

owners of Solomon & Teslovich, Inc.;

(E) In November of 1977, Gaziano gave Henrietta

Foster two manila envelopes and stated that they con-

tained records of business transactions of Solomon & Tes-

lovich, Inc., which occurred while Gaziano was employed

by that company.

(F) Gaziano further stated that the records were hot

and very incriminating to S&T. Also, if the records got in-

to the wrong hands, they could cause a fire;

(G) Gaziano told the Federal Bureau of Investigation

that while at Solomon & Teslovich, Inc., he learned every

phase of the company’s operations;

(H) Henrietta Foster delivered the records to the

Federal Bureau of Investigation, and copies were made

relative to the years 1976 and 1977;

(I) The records were reviewed by Federal Agents and

found to relate to S&T and Redstone Hauling Company;

(J) Notations along the check stubs and ledger sheets

indicate that checks were not paid to the actual payee but

rather to individuals identified by name or initials on the

stub or ledger sheet;

(K) The names and initials on the ledger sheet and

check stubs indicate payments to George Solomon, G.S.,

30a

G. Teslovich, G.T., J.A., Anderson, Yurick, C.Y., Con-

ners and T. Pecura;

(L) Contacts by Federal Agents with an official at

United States Steel Corporation established that S&T and

a subsidiary had contracts with United States Steel, and

that John Anderson and Charles Yurick were at that time

employees of United States Steel in areas involving S&T’s

contracts with Steel;

(M) The names J.A., C.Y., Yurick and Anderson ap-

pear on the disbursement sheets of the reviwed records,

and Anderson’s name appears in a telephone book of Ga-

ziano;

(N) Further contact by the Fedeal Bureau of Investiga-

tion revealed that a Conners worked for PennDot in High-

way Construction, and a similar name, namely Conners,

appears in the disbursement sheets;

(O) S&T had one large highway construction project

with PennDot;

(P) Tom Pecura is Business Manager of Laborers

Union Local 1508, and George Solomon stated to a Fed-

eral Agent that he uses union labor and often deals with

Tom Pecura of the Local;

(Q) The names Anderson, Conners and Arnie appear

on check stubs issued to either Rathway Trucking or Clin-

ton Fuel and Transportation Company, but contact with

those companies by the Federal Bureau of Investigation

indicated that no one by those names had ever worked

there;

(R) An interview of an employee-teller of the Second

National Bank of Masontown, Pennsylvania, revealed

that an individual who was known to the teller as an

employee of S&T appears at her window in the bank and

cashes S&T checks payable to other companies;

3la

(S) The checks contained scribbled endorsements and

the amounts so large the teller often was required to obtain

additional funds from the vault;

(T) Redstone Hauling Company and S&T shared cor-

porate offices near the town of Masontown; and,

(U) A Federal Agent observed corporate records in fil-

ing cabinets of the corporate office building of S&T, a

building also shared by Redstone Hauling, the same com-

pany for all purposes according to George Solomon.

No. 8. We find the selected facts taken from the af-

fidavit and attachments permit a finding by the Magistrate

of probable cause. First, we note that the type of citizen

knowledge of Henrietta Foster, based on her employment

with Suncrest, Gaziano’s admissions to her, the records

she supplied, the details contained therein, and the manner

in which she received secreted documents, makes this case

distinct from one involving a hearsay statement from an

undisclosed confidential informant. Here the requisite

reliability is apparent. See United States vs. Harris, 403

U.S. 573, 590, 1970.

No. 9. Henrietta Foster was employed by a person who

was in a position to gather written documents that were in-

criminating to S&T. She is named and her position is iden-

tified. Gaziano is also named and his position with S&T

was identified. Further, the manner in which she received

the envelopes and their secretive detailed nature are rele-

vant to whether the Magistrate could credit her informa-

tion. The statements by Gaziano to her are clearly declara-

tions against his penal interest, and her statements to the

F.B.I. may be to the same effect since she had received

stolen property and knowingly concealed a possible Fed-

eral crime. See Jaben vs. United States, 381 U.S. 214, 224,

1964. We find that the Magistrate properly found Hen-

rietta Foster to be reliable and credible.

32a

No. 10. The fact that Henrietta Foter had not given

previous information to a police agency is not critical in

light of the corroborating information. Harris vs. United

States, 403 U.S. 573, 1970; Jones vs. United States, 362

U.S. 257. Here the supporting information is substantial.

The employment of persons in sensitive positions of com-

panies and agencies that did business with S&T; the state-

ments of Brenda Royster to the Federal Bureau of In-

vestigation; the fact that certain names of persons ap-

peared in the records, and those persons did not work at

Rathway Trucking or Clinton Fuel; and the records them-

selves in great detail tend to establish believability and

perhaps knowledge so as to establish probable cause to

believe that a pattern of commercial bribery was taking

place at S&T.

No. 11. It must be noted that the Magistrate was not

presented only with the hearsay declarations of Henrietta

Foster. Henrietta Foster also produced records, and the

Magistrate had the benefit of the detailed analysis of those

records by Federal Agents. Hence, to repeat, this is not a

case in which a warrant was based on the uncorroborated

hearsay declarations of a confidential informant without

more. Moreover, as was stated in United States vs. Alfon-

so, corroboration is necessary only in the absence of a

statement detailing the manner in which the information

was gathered.

No. 12. The Court of Appeals in the United States vs.

Alfonso addressed the requirement that the affidaivt con-

tain facts sufficient to demonstrate that the informant

based his conclusions on adequate knowledge. The Court

held that an informant may derive such information

through direct observation or an “equally reliable means.”

Citing United States vs. Busch, 647 F.2d 357, 362, Third

Circuit, 1981. Can there be any more equally reliable

33a

means than business records obtained by an accountant

who worked for a company and who admits the records

are hot and incriminating? That these are business records

of S&T is plain, and we are satisfied that by reviewing the

affidavit and attachments the Magistrate properly arrived

at the conclusion that there was probable cause to believe

that a patttern of bribery existed so as to issue this search

warrant.

No. 13. It is helpful to remember that the Magistrate

was dealing with probability. Was it probability that Hen-

rietta Foster was telling the truth? Were there enough facts

to determine to a probability from her statements the

records and subsequent investigation that a pattern of

commerical bribery existed at S&T? We answer both ques-

tions in the affirmative. This case is much stronger than

United States vs. Bush, 647 F.2d 357, and there the Court

of Appeals upheld the warrant finding sufficient evidence

of veracity and knowledge.

No. 14. We cite for Counsels’ review Footnote 5 of

Bush which reads as follows: “A legitimate basis of

knowledge means in general that the informant either

directly observed the critical facts or that he obtained

those facts directly from one of the participants in the

criminal enterprise who by revealing those facts made an

admission against penal interest.” Citing United States vs.

Harris, 403 U.S. 573. See also LaFave at 3.3(e). We find

that the records, Gaziano’s statements, and the subsequent

corroboration of Henrietta Foster’s veracity and informa-

tion, are sufficient to satisfy probable cause. United States

vs. Bush.

No. 15. We now turn to the question of staleness.

Defendants contend that the records relate to alleged con-

duct that transpired in 1976 and 77, and, therefore, the in-

34a

formation cannot serve as the basis for a search warrant

issued on December 17, 1979. Defendants contend that the

Magistrate had no reason to believe that a pattern or prac-

tice existed in 1976 or 77, and, more importantly, that it

continued. We disagree. First, the records delivered to the

Bureau of Investigation established a pattern, and, fur-

ther, that entry of the payments in the records occurred

after the payment was made, thus, although Exhibit 1,

Page 63, deals with miscellaneous income for 1976, and

Exhibit 1, Page 56, recites April 19, 1976, we believe that a

pattern was established for 1976 and 1976 plus the prece-

ding and succeeding years.

No. 16. The question of whether there was sufficient

evidence for a magistrate to conclude that a pattern of

bribery was continuing is resolved by the investigation of

the Bureau of Investigation. Ms. Foster delivered the

records to the Bureau on July 17, 1979, and the matter was

presented to the Magistrate of this Court on December 18,

1979. Actually, it was presented the day before, and, as I

understand it, he rejected the first affidavit. He signed it,

however, on December 18, 1979. Most of the investigation

here took place in the Fall of 1979, but the precise date is

not important. Rather, the facts developed are important

and especially the statements of the teller at Second Na-

tional Bank. Thus, the Magistrate had evidence that S&T

was doing business with certain companies and PennDot;

that persons whose names and initials appear in the

records were employed in sensitive positions with these en-

tities from July 17, 1979, to at least December 18, 1979;

that checks were drawn to persons who did not work for

several companies during this period; that large sums of

cash were being generated during this time frame by S&T

by cashing checks with vague endorsements at Second Na-

tional Bank; and that business records were on the

35a

premises of S&T in the Fall of 1979 and prior to the is-

suance of the search warrant.

No. 17. As the Supreme Court noted in Andresen vs.

Maryland, 427 U.S. 463, 478, Footnote 9, 1976, a relative-

ly long delay may prevent a finding of probable cause in

some cases, but not in others. The facts of each case deter-

mine the outcome. The key in our judgment is whether a

pattern is evident or merely an isolated incident. See U.S.

vs. Forsythe, 560 F.2d 1127, 1132, Third Circuit, 1977.

No. 18. Consistent with the ad hoc approach to this

issue are the following authorities: United States vs.

Brinklow, 560 F.2d 1003, Tenth Circuit, 1977, in which 11

months was not found to constitute staleness; United

States vs. Scott, 535 F.2d 522, Fifth Circuit, 1977, in

which a period of nine months to two years and nine

months was found not to constitute staleness; and United

States vs. Rahn, 511 F.2d 290, Tenth Circuit, 1975, in

which two years was found not to constitute staleness.

And in the United States vs. Rahn the Court held that

weapons held and observed in a location two years before

established probable cause. Here we find that the

Magistrate was presented with sufficient facts to conclude

not only that a pattern of bribery was continuing, but also

that the records seized by Gaziano were on the premises

when the affidavit was filed. First, we are dealing with cor-

porations and business records; second, the records seized

were business records; third, companies are required to

maintain records for tax purposes and to continue the or-

dinary course of business; and, fourth, there is no direct or

definite evidence that Gaziano destroyed these records

rather than returning them once the investigation of Sun-

crest began. In sum, as in Aldreson vs. Maryland at Page

479 and Footnote 9, we find that there was probable cause

to believe that such records would be maintained in the of-

36a

fices of S&T for the period of time in question, particular-

ly in light of the wide-ranging and sophisticated nature of

this alleged scheme of bribery.

No. 19. Defendants next contend tht the warrant au-

thorized the seizure of so many kinds of records in such

broad language and for such a lengthy time period that the

warrant is general, and, therefore, Constitutionally in-

firm. We disagree.

No. 20. With regard to the time period, to-wit, 1975, to

December 18, 1979, we find that the evidence established

probable cause for the Magistrate to conclude that the ac-

tivities encompassed this period. The analysis of the

records for 1976 and 77 reveals that the entries were made

on some occasions after the fact. Thus, a document bear-

ing the date 1976 could relate to a transaction in 1975,

especially when considering the nature and reasons for the

payment. Prospectively, we find that the Magistrate had

probable cause to believe the scheme was ongoing for the

reasons rehearsed.

No. 21. With regard to the types of records to be seized,

that is, specificity, we are satisfied that this is not a general

warrant. See United States vs. Johnson, 690 F.2d 60,

Third Circuit 1982. That case upheld language much more

imprecise than the language here. Here we have a case in-

volving corporate records involving commercial bribery.

The records used in the ordinary course of business were

the records used to generate cash, record the payments and

mask the alleged scheme. Therefore, it is not a case in

which the United States was seeking a specific instrument

used to commit a crime or a particular solvent or precursor

or drug as in the routine csae.

No. 22. Even a cursory review of the records attached

to the affidavit and marked Exhibit | indicates the dif-

37a

ferent types of records probably used in this scheme:

checks, tax records, ledgers, calculator data, check stubs,

vouchers, memoranda, longhand notes, bills, statements,

invoices, settlement sheets, and cashier’s checks. Many

with cryptic notes attached are included. All are business

records. of S&T, or one of the offices. All are used in the

ordinary course of business. Thus we find nothing in-

definite in light of these documents and the pattern of ac-

tivity previously rehearsed so as to prevent seizure of

business records of S&T limited to cash receipts and

disbursement journals and ledgers, checks, wire transfers,

books of account, in addition to any other writings per-

taining to S&T, Inc., which reflect payments to agents of

unions, United States Steel, PennDot, or other business or

governmental entities. We find that the warrant does not

permit the seizure of one thing under the warrant describ-

ing another. The warrant describes in both specific and in-

clusive generic terms what was to be seized. And by using

the term “all,” the Magistrate, rather than the F.B.I.,

determined what was to be seized. The final sentence is

also sufficiently specific in our judgment. See Andresen

vs. Maryland, 427 U.S. 460, 470-77. Defendants’ conten-

tion will be denied.

No. 23. Defendants next argue that some of the records

actually seized were not authorized by the warrant. This is

a case involving, apparently, approximately 4,000 ex-

hibits, and, therefore, the Court has not as yet benefited

from the industry and imagination of the able lawyers in

this case. Therefore, the Court is ordering Counsel to

review every exhibit that the United States will offer as

evidence at trial within seven days. On Wednesday, Jan-

uary 26, 1983, we will resume this hearing to determine

whether there is any merit to Defendants’ contention that

particular items were seized without the ambit of the war-

38a

rant. In short, I assume that most of the exhibits can be

resolved by stipulation. As to those that cannot, we will

receive appropriate evidence on this issue and determine

whether individual exhibits must be either suppressed or

returned to the Defendants.

No. 24. Defendants also argue that failure to include the

affidavit with the warrant violates a Federal Criminal Rule

and requires that all evidence be suppressed. Defendants

rely on United States vs. Roche, 614 F.2d 6, First Circuit,

1980, but that reliance is misplaced. In Roche the Court

found that the warrant was too broadly worded, and the

affidavit, which was not referred to in the warrant, or

served with it, could not cure the defect. Here, as we have

found, the warrant was specific; it was not too broadly

worded so as to permit the seizure of any item at the whim

of the Federal police. Thus, the failure to supply the af-

fidavit was immaterial and certainly does not require sup-

pression of the evidence. In addition, the United States

supplied a plausible reason for not providing the warrant,

and we find no reason to conclude that the failure to

literally comply with a Rule of Criminal Procedure under

the circumstances requires suppression or dismissal. De-

fendants’ motion will be denied.

No. 25. The motion of the Defendants to suppress will

be denied in all respects with the exception of the one re-

maining issue, and that will be heard on Wednesday next if

Counsel are unable to resolve the issue by stipulation

based on The teachings of Andresen vs. Maryland, 427

U.S. at 482, Footnote 11.

No. 26. With regard to the other motions, we will ad-

dress them first as filed on behalf of George M. Teslovich,

Jr., by his able lawyer, Stanley Stein:

(A) The motion to suppress is denied with the exception

39a

of the single issue previously discussed which will be heard

next Wednesday;

(B) The motion to dismiss the indictment alleging con-

spiracy and the aiding and abetting counts is denied. There

is no basis in law or fact for such relief. For example,

merely because this Defendant is not mentioned in an

overt act is of no significance if he was a member of the

conspiracy or aided and abetted as alleged. The fact that

he was not an employee or officer is also not dispositive.

The indictment is in proper form, and the Defendant must

await proof by the United States. If the evidence is want-

ing, Defendant is entitled to relief when the Government

rests its case;

(C) The motion of George M. Teslovich, Jr., to inspect

Grand Jury minutes is denied. The indictment is in proper

form, and this is an attempt to secure pretrial disclosure of

witnesses which is not required under the circumstances;

(D) The notion for a Bill of Particulars is denied. The

Defendant has been advised as to each exhibit to be pro-

duced by the United States at trial, and the indictment is

specific and meets the three-pronged test so as to ade-

quately advise the Defendant of the charge and to afford

him a basis for a defense, and to prevent any subsequent

prosecution for the same crime;

(E) This Defendant’s motion to require the United

States to disclose the manner of selecting the Grand Jurors

is denied because Defendant has failed to allege or ad-

vance by evidence or otherwise any allegation of im-

propriety;

(F) Defendant’s motion for disclosure of mail cover has

been resolved and is now moot;

(G) Motion to identify evidence secured by mail cover

40a

has been withdrawn, as we understand it, by agreement

since no such seizure occurred;

(H) The motion for inspection and discovery of ex-

culpatory material is granted to the extent that the United

States shall comply with Brady vs. Maryland. It is in all

other respects denied;

(I) This Defendant’s motion for identity of witnesses

prior to trial is denied;

(J) The motion to interview United States witnesses is

granted, if they desire to converse with Counsel, but only

after they have testified on Direct Examination;

(K) The motion for a pretrial list of witnesses is denied;

(L) The United States is ordered to turn over to Counsel

all Jencks Act Grand Jury material, rap sheets, leniency

grants, immunity considerations, and plea-bargain ar-

rangements to Defense Counsel after selection of the jury

unless on an individual-witness basis the United States

convinces this Court that good cause is established to

withhold such information until the witness testifies on

Direct Examination;

(M) The motion for additional preemptory challenges is

deferred until trial;

(N) The motion to disclose information as to prospec-

tive jurors is denied;

(O) The motion to disclose informers will be granted to

the extent that any informer not called by the United

States as a witness shall be divulged when the United

States rests its case. We find no good cause, need or other

basis on this record to adopt a distinct approach. Most in-

formers here we assume are witnesses or employees or

associates and they are not informers in the classic sense of

4\a

the word. And our approach, therefore, meets the ends of

justice.

(P) The motion to sever will be denied based on the

teachings of the United States vs. Boscia. There is no

evidence on this record that any co-defendant will testify,

or is willing to testify, or will supply exculpatory evidence,

because Defendants have failed to file the necessary af-

fidavits. Therefore, judicial economy becomes a factor in

this three-to-five-month trial;

(O) The request for individual voir dire is deferred until

trial.

No. 27. We will also treat the rulings that we have just

made in finding No. 26 as applying to George A. Solomon

and George Teslovich rather than reviewing each of the

motions that they have filed. The motions have been

granted or denied or deferred as to each Defendant as we

have found, and a written order will follow.

Now, George R. Teslovich has filed several other mo-

tions. First of all, he contends the indictment is vague and

must be dismissed. We disagree. The indictment is in pro-

per form. It properly advised the Defendant of that which

he must meet, and we see no vagueness which would raise

Constitutional or other implications. Therefore, the mo-

tion will be denied.

George R. Teslovich has indicated tht he desires an ex-

tension of the Speedy Trial Act. This Court intends to

enter an order to make certain that all of the period of

time following the filing of the motions up to the present

day, and continuing in the future, since we have an

unresolved motion, is excluded from the provisions of the

Speedy Trial Act. We will address next Wednesday when

42a

we resume this hearing the question of when the trial itself

will actually begin.

George R. Teslovich has filed a motion to produce

Grand Jury minutes. That motion is denied. Such a pro-

duction is only warranted upon a showing of exceptional

circumstances, and there is no such allegation in this case,

or proof thereof.

Mr. George R. Teslovich has also filed a motion

concerning wire interceptions. There is an affidavit of

record indicating that no wire interceptions were employed

by any agency of the United States in this case. Mr.

George R. Teslovich has filed a motion for severance.

That motion is denied because, one, there are no affidavits

of record indicating that the other Defendants will testify;

secondly, there are no affidavits of record indicating that

if they did testify their testimony would be exculpatory,

and, therefore, a factor of judicial economy in the lengthy

trial which becomes important.

Lastly, there is a motion filed by George R. Teslovich to

strike a portion of the indictment as being irrelevant and

improper under the Federal Rules of Criminal Procedure.

We have reviewed that in detail and find that motion to be

without merit.

Gentlemen, have I overlooked anything?

Now, will this period of time give you sufficient time to

review these 4,000 exhibits and advise me concerning the

future course of events?

MR. GREENFIELD: Will what Your Honor just read

be promulgated in some written form?

THE COURT: No, sir. I will enter an Order as I do, but

my Findings are always read right into the record.

43a

MR. GREENFIELD: Okay.

MR. STEIN: The United States Attorney, Your Honor,

will, I think, advise us, and I am not sure whether we have

any documents that already indicate which of the docu-

ments, which of the 4,000 exhibits, were in fact seized in

the execution of the warrant. I think it will reduce the

number of documents that have to be reviewed.

THE COURT: all right sir.

Mr. Thieman, can you do that within the period I have

indicated?

MR. THIEMAN: I don’t know if we could do it in writ-

ten form. We would be glad to sit down with Counsel and

indicate as the things are reviewed what are search and

what are rfot search.

THE COURT: Then you can make a record as you are

doing that, too.

MR. THIEMAN: Yes.

THE COURT: All right.

MR. GREENFIELD: Your Honor, at the time I made

argument to you, | indicated that I wanted the opportunity

to place of record as part of the factual development of the

case, the indication that the records were in fact destroyed,

the ones that were returned to Mr. Gaziano, and that the

Government knew that. Your Honor in his opinion indi-

cated that there is no evidence of record to that effect.

THE COURT: No definite evidence . That is correct. I

think that is right.

MR. GREENFIELD: And you gave me the right to

place that of record, and I want to do that perhaps by next

dda

week. The Government knows they were destroyed, has

evidence to that effect, and that is our information as well.

THE COURT: Very good. Perhaps you can prepare a

written stipulation, and it will be signed if that is the fact.

MR. GREENFIELD: Presumably that won’t change

your ruling since one of the bases for that ruling on Point

20, whatever it was, was that there was no such evidence.

It is important to us that the record be clear on that.

THE COURT: Those findings in that Finding, that is

right, were in the disjunctive.

Anything else?

All right. Well, then, we will recess on this until

Wednesday next at 10:00 A.M., at which time whatever

you have to produce you may do so. We will then also dis-

cuss a specific trial date which will come quickly

thereafter.

MR. STEIN: Counsel for Defendants have previously

discussed among themselves — and whether or not it is ap-

propriate today or next Wednesday I do not know — but

we have discussed a request of the Court to certify some or

all of the suppression questions here to the Third Circuit

for appeal inasmuch as this trial is going to be lengthy.

THE COURT: That motion is denied. The Court of Ap-

peals has enough work to do without certifying questions

which really are rather routine. The teachings from the

Court of Appeals addressed this issue, if you look at them

carefully. And if judgment is ultimately entered in this

case, there is sufficient time for the Court of Appeals to

address them. It is not my practice to certify questions at

all, but I will concede that if the appropriate case came

along, I would certify. This is not that case.

45a

Now, I am also mindful that Mr. Preiser has a bench

trial of a few days; that this case may occasion a conflict;

is that true?

MR. FAHRENZ: Again, Your Honor, as I told you in

our informal conference that I would do, I would relate

now to the Court that trial has been continued.

THE COURT: That has been continued?

MR. FAHRENZ: Right.

THE COURT: Then we have Mr. Greenfield, who has a

case before Judge Diamond that we want to try to work

around.

MR. GREENFIELD: Yes. I am sure we can do that, but

that is between you and Judge Diamond. Next week I

think we can work around another matter, but Judge

Mansmann has me scheduled to continue a previously

started, obviously non-jury civil case.

THE COURT: Did she give you a date?

MR. GREENFIELD: She said Monday the 24th. I am

going to confirm that today. How many days beyond that

it will go, that is whether through the 26th, which is when

you asked us to convene, I don’t know. Or, in any event,

we can take a recess and come here. I don’t know how long

we would be here, in any event, probably not all that long,

and I can still continue with that.

THE COURT: She called me about that, as a matter of

fact. I don’t recall the date she did. But Monday next —

MR. GREENFIELD: — the 24th.

THE COURT: — you have to be before her?

MR. GREENFIELD: We will see you on the 26th, but I

assume the matter with you will not take all day. I

46a

shouldn’t think it would. And if I am still in session with

her, we will just recess, I assume, or I hope we can, for

your purposes. In any event, would you coordinate that

with her?

THE COURT: Oh, yes, absolutely. I just don’t want a

lot of people coming in from out of town and the hearing

not being held on the day we indicated. Perhaps it might

be wise to move this back one day then to Thursday. That

will give you more time, and we can resolve those matters

and hopefully you can have that over before Judge Mans-

mann. We will set it up, then, for a week from tomorrow

here at 10:00 o’clock for any remaining, unresolved mat-

ters.

Anything else?

Thank you very much.

(Whereupon, the proceedings were concluded.)

CERTIFIED TRUE AND CORRECT TRANSCRIPT,

/s/ Colvin G. Vogel

COLVIN G. VOGEL, Official Reporter