The opinion of the court was delivered by: CAHN
On December 8, 1978, the grand jury returned a four count indictment charging Gordon G. Grubb and Vincent T. Improto with violations of 18 U.S.C. §§ 2, 371, and 1014. The grand jury charged that the defendants, officers of Teamsters Local 830, made false statements in connection with loan applications submitted to the Teamsters United Brewery Workers Federal Credit Union and the Provident National Bank.
Defendant Grubb has moved to suppress certain evidence which he claims that the government illegally seized; defendant Improto, joined by defendant Grubb, has moved to dismiss Count II of the indictment because of its alleged duplicity; both defendants have moved to have the entire indictment dismissed on the ground of misconduct by the Federal Bureau of Investigation agent assigned to the case (Agent). After considering the evidence presented at hearings held before me on February 15 and March 14, 1979, as well as the briefs and able arguments of counsel, I hold that defendant Grubb's motion to suppress and defendants' Grubb and Improto's motions to dismiss Count II and dismiss the entire indictment must be denied.
Defendant Grubb has moved to suppress evidence obtained from:
any and all banks and/or financial institutions at which Gordon Grubb maintained any sort of business relationship, where such records were obtained without legal process in violation of defendant's rights under the First, Fourth and Fifth Amendments to the United States Constitution.
The evidence and arguments presented to this court at the hearing on February 15, 1979, focused on two specific pieces of evidence: (1) documents (particularly a financial statement submitted by defendant Grubb to the Provident National Bank (Provident)) which allegedly form the basis for Count III of the indictment, and (2) oral statements made by one John Scott Adams, a loan officer at the Provident, to the Agent, which allegedly form the basis for Count IV.
Bring with you all savings, checking, loan or deposit certificate accounts either jointly or singlely (sic) held for Gordon G. Grubb and Louise Grubb from 1972 to the present.
Pursuant to this subpoena loan officer Adams gave the Agent a financial statement which defendant Grubb had submitted to Provident on January 13, 1978. Although Adams was not issued a subpoena for grand jury testimony until August 24, 1978, in April of 1978 the Agent took oral statements from him about defendant Grubb's financial affairs. Both the United States Attorney handling the investigation and the Agent specifically requested that Provident employees not discuss the matter with anyone other than their superiors at the bank.
Defendant Grubb contends that the government abridged his Fourth Amendment rights by obtaining those documents and oral statements. Although Grubb recognizes that under United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976), the Fourth Amendment does not protect documents that he submits to his bank, he suggests that the facts of this case make it distinguishable from Miller.
The defendant in Miller had moved to suppress records of accounts which he held at two banks. The presidents of these banks had been served with subpoenas duces tecum which ordered them to produce "all records of accounts, i. e., savings, checking, loan or otherwise," of the defendant. 425 U.S. at 437, 96 S. Ct. at 1621. The two banks complied with the subpoenas without informing the defendant. Among the records supplied pursuant to the subpoena were two financial statements which Miller had submitted to one of the banks. The Supreme Court found "that there was no intrusion into any area in which (the defendant) had a protected Fourth Amendment interest," 425 U.S. at 440, 96 S. Ct. at 1622, and held that the district court had correctly denied the defendant's motion to suppress these documents. In reaching this conclusion the Court reasoned that,
All of the documents obtained, including Financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. . . .
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will ...