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United States v. Wecht

May 14, 2009

UNITED STATES OF AMERICA
v.
CYRIL H. WECHT, DEFENDANT



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.

MEMORANDUM OPINION

Presently pending before me in the above-captioned case is the Defendant's motion seeking reconsideration of the denial of his Rule 29 motions, the denial of his motion to dismiss charges brought under 18 U.S.C. § 666, and the denial of certain suppression motions. For the reasons set forth below, the Defendant's motion for reconsideration is granted and his requests for substantive relief are granted in part.

I. BACKGROUND*fn1

The Defendant, Dr. Cyril Wecht, is a renowned forensic pathologist and former Coroner of Allegheny County. On January 20, 2006, he was indicted on eighty-four counts of theft of honest services, mail fraud, wire fraud, and theft from an organization receiving federal funds in connection with his tenure as Allegheny County Coroner, which commenced in 1996.*fn2 The case was initially assigned to the Hon. Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania, Pittsburgh Division.

The indictment has since been redacted and reformulated but, as originally drafted, it alleged that the Defendant, in his capacity as Allegheny County Coroner, had engaged in a scheme to misuse the personnel and resources of the Allegheny County Coroner's Office ("ACCO") toward his own personal and private gain and thus deprive Allegheny County and its citizens of the intangible right to the honest services of the Defendant and other ACCO employees. According to the indictment, this scheme involved the Defendant's use of county employees and resources to conduct his own private pathology business, which operated under the name Cyril H. Wecht and Pathology Associates, Inc. ("Wecht Pathology"), and to obtain services which benefitted the Defendant and his family members both personally and politically. Among other things, it was claimed that the Defendant had caused ACCO employees, while on duty, to perform private work on behalf of Wecht Pathology, to run personal errands for the Defendant and his family members, to act as chauffeurs for the Defendant and/or his family members on matters unrelated to ACCO business, and to participate in campaign efforts on behalf of the Defendant and/or his son. The indictment also alleged that the Defendant had engaged in numerous acts of wire fraud by generating fraudulent limousine charges and substantially inflated airfare expenses in connection with his private business and then transmitting the fraudulent bills by facsimile to his private clients. It alleged that the Defendant had committed mail fraud by causing fraudulent mileage reimbursement invoices to be prepared and mailed to various counties in Western Pennsylvania in connection with services rendered by Wecht Pathology. In actuality, it was charged, the Defendant had used county-owned vehicles for his private transportation needs but kept the reimbursement monies, even though ACCO (not the Defendant) had paid for the gas and maintenance on the vehicles used. Finally, the indictment alleged that, in each of the calendar years 2001 through 2005, the Defendant, acting in his capacity as Allegheny Coroner, had embezzled, stolen, obtained by fraud and otherwise converted without authority ACCO "property" (i.e., the use of ACCO personnel, vehicles, facilities, resources, equipment and space) valued at $5,000 or more, in violation of 18 U.S.C. § 666(a)(1)(A).*fn3 .

It appears that much of the evidence utilized by the Government in support of these charges was obtained, either directly or indirectly, through the execution of two separate search warrants, both of which were presented to a United States Magistrate Judge on April 7, 2005. One of the warrants sought the seizure of approximately twenty boxes of private autopsy files from the offices of Wecht Pathology. The other sought the seizure of a laptop computer utilized by the Defendant's executive assistant, Eileen Young, and all of the information and data stored within the laptop. Through a number of pretrial proceedings, the defense sought unsuccessfully to suppress the evidence obtained from these searches.*fn4

Prior to trial, the defense also sought, unsuccessfully, to obtain a dismissal of the Government's § 666(a)(1)(A) theft charges. (See Def.'s Mot. to Dismiss the Indictment [180] at Br. in Supp. [207].) In relevant part, the defense argued that the Government's charging theory misapplied the statute in several respects by (i) erroneously expanding the statute's reach to cover the theft of intangibles such as employee services; (ii) impermissibly and arbitrarily aggregating multiple alleged thefts occurring during the course of a given calendar year in order to satisfy the statute's $5,000 threshold; and (iii) applying the statute in a manner that resulted in duplicitous and unconstitutionally vague charges. This motion was denied by Judge Schwab in a memorandum opinion and order dated June 29, 2006 [264].

On January 7, 2008, the Government filed a Redacted Indictment [656-2], which paired its case down from eighty-four charges to forty-one charges. These redacted charges were comprised of: twenty-four counts of theft of honest services- wire fraud, in violation of 18 U.S.C. §§ 1343, 1346 and 2 (Counts 1-24); three counts of theft of honest services - mail fraud, in violation of 18 U.S.C. §§ 1341, 1346 and 2 (Counts 25-27); five counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2 (Counts 28-32); four counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2 (Counts 33-36); and five counts of theft of property from an organization receiving federal funds, in violation of 18 U.S.C. §§ 666(a)(1)(A) and 2 (Counts 37-41).

The case proceeded to a lengthy trial which occurred over the course of several weeks in early 2008. The evidence closed on March 11, 2008 with the conclusion of the Government's case-in-chief.

In accordance with the trial court's directive, the defense filed a Rule 29 motion for a judgment of acquittal within hours after the close of the prosecution's case. (See Motion for Judgment of Acquittal and supporting brief (Docs. [815] and [816]). In relevant part,*fn5 the Defendant challenged the legal sufficiency of the Government's proof as it pertained to the mail fraud, wire fraud, and § 666(a)(1)(A) counts. With respect to the wire fraud charges at Counts 28 through 32, the defense argued that the Government had failed to establish that the alleged acts of fraud were material. The defense asserted a similar challenge with respect to the mail fraud charges at Counts 33 to 36, and further argued that the Government had failed to prove, as a factual matter, that the Defendant had driven a county vehicle on the days for which fake limousine charges had been generated. With regard to the § 666(a)(1)(A) charges at Counts 37 to 41, the defense argued that the Government's evidence was insufficient in at least two respects: it failed to establish that the Defendant knowingly embezzled, stole, obtained by fraud, or converted "property" within the meaning of the statute, and it further failed to place a value on the items alleged to be "property."

The Government filed its response to the Defendant's motion [818] later that same day. On the following day, Judge Schwab issued an order [822] denying the motion.

Jury deliberations ensued but, after approximately ten days of deliberations, the jury was unable to reach a unanimous verdict on any of the Government's forty-one counts. Consequently, on April 8, 2008, Judge Schwab declared a mistrial.

Thereafter, the defense filed a renewed motion for judgment of acquittal (see Docs. [912] and [913]) in which it reasserted the Defendant's insufficiency-of-proof arguments relative to the issues of materiality, the Defendant's alleged use of a county vehicle, and the valuation of items allegedly stolen in violation of § 666(a)(1)(A). The Government responded on April 23, 2008 (Doc. [925]) and the defense filed its reply on May 13, 2008 [926]. The renewed motion was denied in a 24-page order entered by Judge Schwab on May 23, 2008 [976].

In the meantime, the Defendant had moved for an order dismissing the indictment and barring a retrial on double jeopardy grounds. (See Docs. Nos. [868] and [869].) Judge Schwab denied this motion on April 27, 2008 [933], and the Defendant took an appeal.

On September 5, 2008, the Third Circuit Court of Appeals affirmed Judge Schwab's April 27, 2008 ruling and remanded the matter for further proceedings. Pertinently for our purposes, the Court of Appeals concluded its opinion with the following directive:

Our holding today that there is no constitutional bar to retrying Dr. Wecht does not stand for the proposition that he must be retried. That is a decision that rests with the Government. Indeed, Wecht's prosecution is one that already has spanned more than thirty months. It has resulted in numerous appeals and emergency motions to this Court and, with the filing of this opinion, three lengthy precedential opinions.

If the Government chooses to proceed with a retrial, our view is that both sides and the interest of justice would benefit from a reduced level of rancor in the courtroom, fresh eyes on the case, and fewer forays to this Court by the parties, including intervening parties. This has been a highly charged, lengthy, and complex case involving serious criminal charges brought against a prominent public figure. The trial judge has been the referee in a heavyweight fight, and, as we have ruled, has generally made the correct calls, with some exceptions. Wecht II, for example, noted that the District Court initially failed to follow our mandate from an earlier order. See 537 F.3d 222, 224 n. 1. And in today's decision, even though there was manifest necessity to declare a mistrial in satisfaction of the Fifth Amendment, the District Court reached that conclusion through a highly flawed set of procedures. See III.B, supra.

Therefore, in the exercise of our supervisory powers under 28 U.S.C. § 2106, see, e.g., Gov't of the Virgin Islands v. Walker, 261 F.3d 370, 376 (3d Cir.2001), see also Liteky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994), we will direct that Judge Schwab be relieved of further duties on this case and that the Chief Judge of the District Court assign a new judge to handle any future matters in the case including any retrial. Although we tread cautiously because "[t]he decision to remove a judge from an ongoing trial should be considered seriously and made only rarely," Huber v. Taylor, 532 F.3d 237, 251 (3d Cir.2008), this case has progressed so unusually as to become sui generis. See, e.g., Living Designs, Inc. v. E.I. Dupont de Nemours and Co., 431 F.3d 353, 372-73 (9th Cir.2005) (concluding under 28 U.S.C. § 2106 that, even absent allegations of bias, because of the highly unusual procedures the trial judge employed, "the appearance of justice requires reassignment on remand"); Sobel v. Yeshiva Univ., 839 F.2d 18, 37 (2d Cir.1988) (concluding "that it is necessary to remand the case to a different district judge" because court of appeals was "disturbed by the manner in which the district court treated this case on our initial remand").

We thus end this chapter in the Wecht appellate saga by coming full circle. In Wecht I, the issue of whether Judge Schwab should be recused for bias figured prominently in the appeal. In that opinion our dissenting colleague concluded under 28 U.S.C. § 455 "that another judge should preside over the trial of Wecht." 484 F.3d at 236 (Bright, J., dissenting). [ ] As we have just described, the problem today is not so much the appearance of bias as it is the appearance of litigation at a combative tenor that likely will not abate were Judge Schwab to stay on the case. We therefore direct that a less invested adjudicator take over from here.

United States v. Wecht, 541 F.3d at 511-12 (3d Cir. 2008) (internal footnote omitted).

In accordance with the appellate court's instruction, this case was assigned to me on October 31, 2008. Following an initial status conference, the Defendant filed the pending motion seeking reconsideration of several adverse rulings previously entered by Judge Schwab.

For one, the Defendant has asked that I reconsider the denial of his motion for judgment of acquittal relative to the wire and mail fraud counts. Here, as before, the Defendant contends that the evidence was legally insufficient to support a conviction for wire fraud because, as to certain counts, the Government failed to establish that the allegedly fraudulent invoices were material and, as to other counts, the evidence specifically disproved any claim of materiality. Once again, with respect to the mail fraud counts, the Defendant challenges the sufficiency of the evidence as it relates to both the materiality of the alleged fraudulent statements and the factual predicate that he had driven a county vehicle on each of the dates identified in the indictment.

Second, the Defendant requests that I reconsider the denial of his motion for judgment of acquittal relative to the § 666(a)(1)(A) charges. This aspect of the motion involves issues of statutory construction which, in turn, entail reconsideration of the denial of the Defendant's antecedent motion to dismiss the § 666(a)(1)(A) charges.

Succinctly stated, the Defendant argues that both the trial court and the Government have misconstrued the statute insofar as the trial court permitted the Government to:

(a) interpret the statute's reference to theft of "property" to include intangibles such as, e.g., the use of county personnel, and (b) aggregate multiple acts of alleged theft occurring in any one calendar year in order to establish that the stolen "property" was valued at $5,000 or more. The Defendant maintains that, when the statute is properly construed, the Government's evidence patently failed to provide a legally sufficient basis for a conviction. Even accepting the Government's construction of § 666(a)(1)(A), however, the Defendant insists that the Government failed to establish adequate proof relative to the valuation of the alleged acts of theft for any given year. The Defendant also objects that the Government's charging theory under § 666(a)(1)(A), as applied in this case, has resulted in duplicitous and unconstitutionally vague charges.

Finally, the Defendant has asked, as an alternative basis for relief, that I reconsider the denial of his motions to suppress the search of his private offices and the seizure of the laptop computer utilized by Eileen Young. In both instances, the Defendant challenges the validity of the warrants on their face, claiming that each one fails to adequately particularize the items to be seized. In addition, however, the Defendant poses numerous challenges to the sufficiency of the supporting affidavits and also challenges the manner in which one of the warrants was executed.

The Government has filed its brief in opposition, and this Court has now had the opportunity to review each sides' papers as well as the relevant law and those portions of the record which are germane to the foregoing issues. In addition, the Court has held two separate arguments on the issues raised in the parties' briefs. In sum, the Defendant's motion is now ripe for disposition.

II. DISCUSSION

A. LAW-OF-THE-CASE CONSIDERATIONS

The first issue which I must address is the very propriety vel non of reconsidering prior rulings by my colleague, Judge Schwab. Specifically, I must address how, if at all, the law-of-the-case doctrine impacts my ability to reconsider his prior rulings.

The rules pertaining to law-of-the-case, as applied in this circuit, are fairly well-established. "As most commonly defined, the doctrine ... posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 (1983) (dictum)). The rule has developed "to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing [case]." Casey v. Planned Parenthood of Southeastern Pennsylvania, 14 F.3d 848, 856 (3d Cir. 1994) (quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (2d ed. 1981)). It has been applied not only to judges being asked to reconsider their own rulings but also to successor judges who are asked to reconsider the rulings of their predecessors. See, e.g., Christianson, 486 U.S. at 816 ("[T]he doctrine applies as much to the decision of a coordinate court in the same case as to a court's own decisions."); TCF Film Corp. v. Gourley, 240 F.2d 711, 713 (3d Cir. 1957) ("judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.")

The law-of-the-case doctrine does not limit the jurisdictional power of trial judges from reconsidering issues previously decided by a predecessor judge from the same court, but it does recognize, as a matter of comity, that a successor judge should not lightly overturn the decision of his predecessor in a given case. Fagan v. City of Vineland, 22 F.3d 1283, 1290 (3d Cir. 1994) (citations omitted). Accordingly, it has been said that a matter previously ruled upon should be revisited only in "extraordinary circumstances," as where, e.g.: 1) the predecessor judge is unavailable; 2) new evidence becomes available; 3) a supervening new law has been announced; or 4) the earlier decision was clearly erroneous and would create manifest injustice. Tse v. Ventana Medical Systems, Inc., 123 F. Supp.2d 213, 221 (D. Del. 2000) (citing Schultz v. Onan Corp., 737 F.2d 339, 345 (3d Cir.1984)). See also Al Tech Specialty Steel Corp. v. Allegheny Internat'l Credit Corp., 104 F.3d 601, 605 (3d Cir. 1997) (discussing "exceptional circumstances" which may justify a court's reconsideration of a prior ruling); Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (discussing circumstances under which a judgment may be altered or amended on reconsideration).

Giving these principles due consideration, I conclude that the law-of-the-case doctrine does not preclude me from adjudicating the matters set forth in the Defendant's motion for reconsideration. As noted, the doctrine is not a rule of jurisdictional limitation but of comity. Fagan, 22 F.3d at 1290. See Ferrara & Hantman v. Alvarez, 124 F.3d 567, 583 (3d Cir.1997) ("[T]he law of the case does not impose a strait-jacket on the court's ability to reconsider issues previously decided. The doctrine simply 'directs a court's discretion, it does not limit the tribunal's power.'") (quoting Arizona v. California, 460 U.S. at 618). As Justice Holmes once wrote, "the phrase 'law of the case' ... merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power." Messenger v. Anderson , 225 U.S. 436, 444 (1912) (quoted in In re Engel, 124 F.3d 567, 583 (3d Cir. 1997)). See also In re Engel, 124 F.3d at 583 ("Although courts are reluctant to reconsider questions of law that have already been decided in the same proceeding, 'it is clear that all federal courts retain power to reconsider if they wish.'") (quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (2d ed. 1981)). Thus, the law-of-the-case doctrine is not uniformly rigid in its application but rather permits a measure of flexibility and discretion on the part of the successor judge.

Furthermore, while principles of comity provide prudent limitations on a successor judge's discretion to reconsider prior rulings in the ordinary run-of-the-mill situation, those principles must give way in extraordinary circumstances, as the law-ofthe-case doctrine itself recognizes. I believe that such circumstances exist here. Indeed, the Circuit Court of Appeals, now well familiar with this case, has described this litigation as "so unusual" as to have become "sui generis." The intense public scrutiny given to these proceedings, the emotionally-charged atmosphere surrounding them, and the sheer prodigiousness of filings and rulings have all combined such that this case has now taken on a life of its own. Without going into detail, it will suffice merely to note that the degree of rancor generated in the course of this case had reached such a level that the Court of Appeals ultimately determined that the best interests of justice would benefit from "fresh eyes on the case." I therefore grant the Defendant's request to reconsider the matters raised in his motion. I consider my willingness to do so consistent not only with the best interests of justice but also with the Third Circuit's directive that the case be henceforth viewed with "fresh eyes." In sum, I find that these proceedings are so exceptional as to allow reconsideration of the Defendant's legal arguments without offense to the law-of-the-case doctrine.

Finally, as will become apparent upon a reading of this Memorandum Opinion, this Court is of the view that the two search warrants issued relative to the search of the Defendant's private offices and a laptop computer utilized by one of the Defendant's administrative assistants were constitutionally infirm. The law-of-the-case doctrine recognizes that a court may depart from the prior ruling of a coordinate court when necessary to avoid an unjust result. See Arizona v. California, 460 U.S. at 619 n. 8. For this reason as well, I conclude that the law-of-the-case doctrine poses no impediment to my ruling today.

On the other hand, while I do not believe that law-of-the-case principles prevent me from revisiting any of the issues presented by the defense, it will be noted that this opinion addresses only two specific aspects of the Defendant's motion for reconsideration.*fn6 Some commentary is warranted in this regard.

The Defendant's pending motion was styled foremost as a request for a judgment of acquittal relative to all of the remaining counts.*fn7 The request for reconsideration of the suppression issues was styled as a secondary, albeit an independently dispositive, basis for relief. Initially, and in a somewhat holistic fashion, this Court focused substantially on the Rule 29 arguments as well as certain peripheral aspects of the suppression arguments.*fn8 However, as my review of these issues progressed to the point where the proverbial "wheat" became separated from the "chaff," it became apparent to me that the Defendant's facial challenges to the two search warrants were both meritorious and dispositive of all other issues. Thus, while this Court has effectively granted the Defendant's request to reconsider with "fresh eyes" all aspects of his motion, I decline -- for reasons that are both practical and rooted in concerns for comity -- to render any substantive opinion on the Defendant's legal challenges beyond those expressly set forth in this opinion.

For one thing, because the search warrant issues appear to independently resolve all pending matters, there is no practical need for me to address the remaining Rule 29 issues. For another matter, the possibility exists, at least in theory, that disposition of the Rule 29 arguments might jeopardize the Government's ability to obtain appellate review of the suppression rulings being rendered today. Without expressing any opinion as to the merits of the Defendant's Rule 29 arguments, I merely note that, if the Defendant were to prevail on any aspect of his request for Rule 29 relief, then (as he maintains) jeopardy would attach to those charges and they would terminate without any further right of appeal.*fn9 It could well be the case that this might moot any aspect of the suppression rulings relating to those counts, thereby foreclosing the Government's ability to exercise its right to appellate review on the suppression issues -- a result which I consider to be both undesirable and unfair.

Accordingly, my discussion of the merits will focus on the two searches which are the subjects of the Defendant's suppression arguments: (1) the FBI's search of the Defendant's private business offices located at 1119 Penn Avenue in Pittsburgh (the "Penn Avenue Warrant") for the purpose of seizing boxes of private autopsy files and (2) the search of Eileen Young's home for the purpose of seizing a laptop computer utilized by Ms. Young in the course of performing work for Wecht Pathology (the "Laptop Warrant"). The factual and procedural history underlying the Defendant's multiple challenges to these two warrants is extremely protracted, and I will limit my discussion to those historical facts which are relevant to the present procedural context. Thus, I turn to the merits of the Defendant's suppression arguments.

B. THE MERITS OF THE DEFENDANT'S SUPPRESSION MOTIONS

1. The Penn Avenue Warrant

On April 7, 2005, Special Agent Bradley Orsini of the FBI sought a warrant to search the offices of Wecht Pathology for boxes of private autopsy files which had recently been removed from the ACCO. In support of the warrant, Special Agent Bradley Orsini submitted a sworn, 10-page "Application and Affidavit for Search Warrant," which laid out his case as to why there was probable cause to believe that the designated boxes of private autopsy files would be found at the Defendant's Penn Avenue office and why they could be considered the fruits, instrumentalities, and evidence of the criminal activity. Having alleged the Defendant's knowing and willful use of ACCO resources and personnel for his own private financial gain, and having also alleged, more specifically, that the Defendant's abuses included the attempted concealment and removal of evidence, Agent Orsini's affidavit then went on to assert the following:

19. In early February of 2005, a criminal probe of WECHT's use of county resources for private work became public. According to ACCO 11, sometime during the week of February 6, 2005, [Eileen] Young asked ACCO 11 to obtain boxes for the purpose of moving large numbers of files from her office at the ACCO. ACCO 11 provided Young with boxes into which Young loaded files reflecting WECHT's private autopsy work. ACCO 11 moved those boxes from the ACCO to WECHT's private pathology office at 1119 Penn Avenue; Suite 4001, Pittsburgh, Pennsylvania after business hours. Flo Johnson provided the key to the space at 1119 Penn Avenue into which ACCO 11 helped move the boxes. WECHT's wife told ACCO 11 where the boxes were to be placed within the office space at 1119 Penn Avenue. According to ACCO 11, the boxes were placed in a records room on the right-hand side of the office suite's hallway. According to ACCO Deputy Coroners, the private autopsy files contain information showing, among other things, (1) use of the ACCO specialty labs for the private autopsies, (2) the identity of the preparer of reports used in the private autopsy cases, including Eileen Young, (3) payment for the private autopsies, (4) the identity of the decedents involved in private autopsies performed with the aid of county resources.

20 According to ACCO 11, Young was very rushed and upset about having to move the boxes quickly. According to ACCO 11, the materials he helped move consisted of approximately 20 boxes of files reflecting private autopsy work for the financial benefit of WECHT. The boxes are labeled on the outside with computer printed labels identifying the names of the decedents. (Appl. and Affidavit for Search Warrant at ¶¶ 19-20, Doc. No. 1009-5 at pp. 13-14 of 42.)

After reviewing Agent Orsini's application and affidavit, a United States Magistrate Judge issued the warrant for the search of the Defendant's private office. In the designated area where the subject matter of the search is to be described, the warrant indicated "see Attachment "B." Attachment B, in turn, described the property to be seized as "Boxes (approximately twenty) and contents containing private autopsy files." (See Doc. No. 1009-5, p. 4 of 42.) It is undisputed that Agent Orsini's affidavit was neither incorporated into the search warrant by reference nor attached to it. Instead, it was placed under seal in order to protect the integrity of the Government's investigation.

The Defendant has challenged the Penn Avenue search on numerous fronts. First, he claims that the search was conducted pursuant to an invalid warrant which failed, on its face, to satisfy the Fourth Amendment's particularity requirement. Second, he claims that the warrant was executed as if it was a general warrant. Third, he contends that Agent Orsini's Affidavit was facially lacking in probable cause and/or was infected with falsehoods which, when redacted, rendered the warrant unsupported by probable cause. Because I find the Defendant's first argument dispositive,*fn10 I need not address the other two.

The Fourth Amendment prohibits unreasonable searches and seizures and specifically provides that any warrant must "particularly described] the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV. This requirement is meant to prevent the issuance of general warrants, which "essentially authorize 'a general exploratory rummaging in a person's belongings.'" ACEF, 461 F.3d 374, 393 (3d Cir. 2006) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)). It has been said that "[t]he particularity requirement 'makes general searches ... 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 warrant." United States v. Christine, 687 F.2d 749, 752-53 (3d Cir. 1982) (alteration in the original) (quoting Macron v. United States, 275 U.S. 192, 196 (1927)).

Here, the Defendant argues that the Penn Avenue Warrant is insufficiently particularized such that it constitutes a general warrant. The Government, on the other hand, contends that the warrant is, at most, overbroad and insists that any deficiency in the warrant's description can be cured by reference to Agent Orsini's affidavit. Alternatively, the Government contends that the ...


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