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October 25, 1983


The opinion of the court was delivered by: SIMMONS

On October 1982, a federal grand jury returned a three-count indictment against Bert and Edward Gigli charging them with a conspiracy to fraudulently transfer and conceal property of Union Forge, Inc., with the intent to defeat the provisions of Title 11 of the United States Bankruptcy Code. This indictment was the culmination of an undercover FBI investigation involving the bankruptcy of Union Forge, Inc.

 Prior to the federal indictment, Union Forge was a Pennsylvania company which manufactured roof bolts used in the mining industry. To forge roof bolts, Union Forge used an assortment of equipment and heavy machinery housed at its facilities in Noblestown, Pennsylvania, which is the subject matter of this criminal action.

 On September 28, 1979, Bert Gigli, the major shareholder and President of Union Forge, filed a petition for voluntary bankruptcy of the Union Forge, Inc. Following the petition, Bert Gigli remained President and debtor-in-possession of the Union Forge, Inc. However, on September 24, 1981, Union Forge was placed in involuntary bankruptcy by order of the Bankruptcy Court and a trustee was appointed. On that same day, the trustee filed a "Petition to Turnover Assets" with the Bankruptcy Court alleging that certain equipment and machinery had been removed from the Union Forge facility in Noblestown, Pennsylvania by Bert Gigli via four flatbed trailers. On October 1, 1981 the Bankruptcy Court entered an order directing Bert Gigli to return possession of the trailers to Union Forge. Through inadvertence, however, the court order made no reference to any equipment or heavy machinery which had been removed from Union Forge. The court order was served on Bert Gigli on October 5, 1981.

 The FBI investigation began when Union Forge's principal debtor and the court appointed trustee lodged a complaint alleging that certain assets of the Union Forge, Inc., believed to be under the jurisdiction of the Bankruptcy Court, were missing from its Noblestown facility. The FBI investigation revealed that Bert and Edward Gigli had removed and concealed certain assets belonging to Union Forge.

 Upon receiving this information and after having reviewed the Bankruptcy Court files, the FBI obtained a copy of a Small Business Administration (SBA) loan application signed by Bert Gigli on June 15, 1981 which contained a complete list of the type, quantity and serial numbers of all equipment then owned by Union Forge. Accompanied by a former employee of Union Forge, the FBI agents inventoried the Union Forge facility and thereafter determined, through comparison of the on-site inspection and the SBA loan application and through representation made by the former employee, that certain equipment and heavy machinery was missing from the Union Forge facility at Noblestown.

 On April 1, 1982, undercover FBI agents, posing as potential purchasers, met with Bert Gigli in Pittsburgh, Pennsylvania and discussed with him the sale of certain equipment used in the production of roof bolts for mining. At that time Bert Gigli stated to the undercover agents that he owned a company which forged mine roof bolts and that the company had gone into bankruptcy. Also, Bert Gigli stated that he had some equipment from the company for sale and that while some people may have considered the equipment "hot" he did not feel that the equipment was "hot".

 Subsequently, on June 2, 1982, undercover FBI agents met with Bert and Edward Gigli in Kingsport, Tennessee. Operating under the guise of inspecting the equipment's condition to firm up the purchase, the FBI agents were led by the Giglis to the Brookside Mini-storage facility located in Kingsport, Tennessee. There, the agents were shown several small manufacturing tools stored in a storage room under lock and key held by the Giglis and several pieces of heavy machinery stored under tarpaulins in an open lot at the rear of the Brookside Mini-storage facility.

 At that time, the Giglis represented to the undercover FBI agents that the equipment at the Brookside Mini-storage facility was the same equipment removed from the Union Forge plant in Noblestown, Pennsylvania, which the Giglis had previously discussed selling to the undercover agents on April 1, 1982, in Pittsburgh. Furthermore, the FBI agents physically observed certain equipment bearing identical serial numbers to the equipment listed on the SBA loan application which had been signed by Bert Gigli and determined to have been missing from the Noblestown facility through the FBI's earlier independent investigation of the Noblestown facility.

 On the basis of their investigation, the FBI agents drafted an affidavit for a search warrant reciting the details and the results of their surveillance and investigation of Bert and Edward Gigli. Attached to the affidavit for a search warrant, as exhibits, were the "Petition to Turnover Assets" filed with the Bankruptcy Court by the trustee, the Bankruptcy Court order directing Bert Gigli to return certain items to the trustee, the SBA loan application, and the itemized list of equipment and heavy machinery inventoried by the FBI agents. Contrary, however, to the express language of the Bankruptcy Court order, paragraph ten of the agents' affidavit erroneously stated that the Bankruptcy Court had "entered an order . . . directing that any property removed from Union Forge on flatbed trucks be returned to the trustee of Union Forge," when in fact the Bankruptcy Court had, through inadvertence, only ordered the return of the flatbed trucks. On the basis of the FBI representations, the magistrate issued a search warrant on June 3, 1982, authorizing the agents to search the Brookside Mini-storage facility.

 The defendant, Bert Gigli, in his motion to suppress has challenged the search warrant on two grounds. First, the defendant alleged that the search warrant is constitutionally overbroad in that it is not limited to the sub-unit wherein the concealed equipment and machinery was alleged to have been stored, but permits a search of the entire Brookside Mini-storage facility. To this end, the defendant argued that the search warrant violates his Fourth Amendment rights because it does not particularly describe the place to be searched or the things to be seized. Secondly, the defendant argued that the affidavit for the search warrant was based upon either false information or information supplied with a reckless disregard for the truth and should therefore be suppressed.


 In this case the government had sufficient information to reasonably believe that assets of Union Forge, Inc. had been removed from its facility in Noblestown, Pennsylvania while under the jurisdiction of the Bankruptcy Court. Investigators had observed several tractor-trailer loads of heavy machinery spirited away in the still of night from the Noblestown facility of Union Forge. A list of the equipment believed to have been removed was compiled by the investigating agents. The same items were subsequently offered for sale by the defendant to undercover agents. Two months later, the defendants escorted undercover agents posing as potential purchasers to the Brookside Mini-storage facility in Kingsport, Tennessee. The identity and serial numbers of the equipment and machinery stored at Brookside corresponded to that which had been earlier removed from Union Forge. In ...

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