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United States of America v. Raymond Zareck

July 12, 2012

UNITED STATES OF AMERICA,
v.
RAYMOND ZARECK, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion for reconsideration for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), (ECF No. 174), filed by Raymond Zareck ("defendant" or "Zareck") in the above-captioned case. On April 13, 2009, the United States government ("government") filed a criminal complaint charging defendant with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). (ECF No. 1.) On May 13, 2009, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment charging defendant with that offense. (ECF No. 5.) On November 25, 2009, defendant filed a motion to suppress in which he made three arguments for suppression of evidence: 1) the search of his vehicle was conducted without a warrant, probable cause, or exigent circumstance, thereby violating his constitutional rights under the Fourth Amendment to the Constitution of the United States; 2) he made statements while in police custody relating to the purchase or assembly of firework or improvised explosive devices without first being read his Miranda warnings, which violated his constitutional rights under the Fifth Amendment to the Constitution of the United States; and 3) the search of his residence was premised on a fatally flawed affidavit of probable cause, thereby violating his constitutional rights under the Fourth Amendment to the Constitution of the United States.

On December 15, 2009, the government filed a response to the motion to suppress. (ECF No. 52.) On May 27, 2010, the court held an evidentiary hearing on the motion during which witnesses testified and exhibits were entered into evidence. On June 29, 2010, the court continued the evidentiary hearing. On July 21-22, 2010, the court held a hearing to determine if defendant was entitled to a Franks hearing to challenge the truthfulness of factual statements made in the affidavit of probable cause supporting the warrant issued to search his residence and determined a Franks hearing was not warranted. On December 3, 2010, after the government and defendant filed proposed findings of fact and conclusions of law, (ECF. Nos. 105, 106), the court denied defendant's motion to suppress. (ECF No. 108.)

On June 14, 2012, defendant, who had retained new counsel, filed a motion for reconsideration of a Franks hearing. (ECF No. 174.) In this motion, defendant argued that at the July 21-22, 2010 hearing concerning the motion for a Franks hearing, the court lacked sufficient information in the form of an expert's affidavit to challenge the bomb squad's advice to Officer Wintruba, which Officer Wintruba relied upon and used to obtain the search warrant at issue. Id. at 5, ¶ 9. Defendant avers that the expert affidavit of Dr. Frederic W. Whitehurst, J.D., Ph.D. ("Dr. Whitehurst") is sufficient to show that Officer Wintruba should not have believed the bomb squad technicians' assessment of the device found in defendant's vehicle because the bomb squad's investigation of that device was incomplete. (ECF No. 174, Ex. D.) On June 28, 2012, the government filed a response to defendant's motion arguing defendant failed to meet the standards for a motion for reconsideration and a Frank's hearing, and thus, defendant's motion for reconsideration should be denied.

I.Background

This opinion incorporates the findings of fact as set forth in the Memorandum Opinion and Order in this case, dated December 3, 2010. (ECF No. 108, United States v. Zareck, No. 09-168, 2010 WL 5053916 (W.D.Pa. 2010)). Defendant's motion for reconsideration specifically concerns Officer Wintruba's reliance on the information provided to him by the bomb squad, which Office Wintruba used in his affidavit of probable cause to obtain a search warrant for Zareck's residence. (ECF No. 174.) Officer Wintruba's affidavit of probable cause provides in relevant part:

Allegheny County Bomb Squad arrived on scene & took possession of the device. The device was transported to a vacant area on the Waterfront & detonated. Bomb Technicians Robert Synan & Mark Divelbiss advised officers that the device was infact [sic] an improvised explosive device. They went on to state that the flash powder Zareck is using in these types of devices is extremely volitile [sic] & dangerous. In addition, depending on how much flash powder is located with in [sic] Zareck's residence this could prove to be a dangerous and hazardous condition for the surrounding neighbors & the public. The technicians Synan & Divelbiss stated that they have had prior experience with bomb makers of this type. They stated that these bomb makers do not make just one improvised explosive device, but infact [sic] make several at a [sic] one time. (ECF No. 37, Ex. A.)

Defendant points to the opinions of Dr. Whitehurst to support his request for the pending motion for reconsideration of a Franks hearing. Dr. Whitehurst opined that the bomb squad's investigation of the device found in defendant's car was incomplete. (ECF No. 174, Ex. D.) Dr. Whitehurst holds a juris doctorate degree and bachelor of science and doctorate of philosophy degrees in chemistry. (ECF No. 174, Exs. D, E). He previously worked for the Federal Bureau of Investigation, where his expertise was in the chemical analysis of materials from bombing crime scenes. As of the date of his affidavit, May 13, 2012, Dr. Whitehurst practices law in North Carolina and serves as a forensic consultant testifying in state and federal courts. Id.

In his expert affidavit, Dr. Whitehurst did not find fault with the render safe procedures followed by the bomb squad technician, Officer Robert Synan ("Officer Synan"), when he first arrived on the scene, x-rayed the device believed to be an improvised explosive device ("IED"), removed it to a safe location, and destroyed it utilizing sheet explosives. Id. at 1, ¶¶ 4-5. Dr. Whitehurst opined that Officer Synan's assumption that the device contained energetic material was appropriate and evidenced his proper training in handling crime scenes of this nature. Id. at 1, ¶ 5. Dr. Whitehurst, however, disagreed with the bomb squad's handling of the device after it was placed in a crater in the ground and exploded to render it safe. Id. at 1-4, ¶¶ 6-8.

Dr. Whitehurst found that the bomb squad's investigation was incomplete because the bomb squad failed to retrieve the contents of the device left in the crater after the explosion. Id. at 1-3, ¶¶ 6-7. Dr. Whitehurst opined that the bomb squad should have retrieved the contents of the crater to conduct a forensic residue analysis to determine whether there were chemicals in the residue which would be present if an explosive was actually in the device. Id. at 1-2, ¶ 6. Dr. Whitehurst explained that the use of an x-ray was an insufficient method to use to determine the chemical make-up of the device. Id. at 2-3, ¶ 7. Instead, in order to conclude whether or not the device was an IED, the bomb squad needed to conduct a chemical analysis of its contents to determine four factors: (1) the kinds of atoms present in the device; (2) which, if any, atoms were attached to each other; (3) what proportion those chemicals were to each other; and (4) the form in which the chemicals were present. Id. at 3, ¶ 7. Dr. Whitehurst opined that the failure to retrieve the contents of the device was in violation of accepted protocol found in the U.S. Department of Justice's Guide for Explosion and Bombing Scene Investigation. Id. at 2, ¶ 6. Dr. Whitehurst opined that the bomb squad's failure to collect and analyze the data from the crater after the device's destruction left the bomb squad with inadequate information to conclude that the device found in defendant's vehicle was an IED, "hot," "volatile," or dangerous. Id. at 3-4, ¶¶ 7-8. It was those conclusions that Officer Wintruba relied upon to obtain a search warrant of defendant's residence. See (ECF No. 37, Ex. A.) Notably, however, Dr. Whitehurst's expert affidavit did not contain any opinion regarding Officer Wintruba's state of mind and whether he had reason to doubt the adequacy of the bomb squad's investigation or the bomb squad's conclusions, which he included in his affidavit for probable cause. See (ECF No. 174, Ex. D.)

Defendant relies on Dr. Whitehurst's opinions to support his motion for reconsideration of a Frank's hearing. The court will now address the merits of this motion.

II.Legal Standard

"Motions for reconsideration may be filed in criminal cases." U.S. v. Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003). A trial judge exercises broad discretion over motions to reconsider, especially as they pertain to interlocutory orders. The Court of Appeals for the Third Circuit has noted, "'[s]o long as [a] district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so.'" In re Anthanassious, 418 F. App'x 91 (3d Cir. 2011) (quoting United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). A trial judge "'should exercise that discretion whenever it appears that a previous ruling, even if ambiguous, might lead to an unjust result.'" In re Pharmacy Benefit Managers Antitrust Litig., 582 F.3d 432, 438-39 (3d Cir. 2009) (quoting Swietlowich v. Bucks Cnty., 610 F.2d 1157, 1164 (3d Cir. 1979)).

The purpose of a motion to reconsider is "'to correct manifest errors of law or fact or to present newly discovered evidence." Bootay v. KBR, Inc., 437 F. App'x 140, 146 (3d Cir. 2011) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). There are three circumstances in which a court may grant a motion for reconsideration: (1) there has been an intervening change in the controlling law; (2) new evidence is now available that was not available when the court entered judgment; (3) there is a need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 667 (3d Cir. 1999) (quoted by U.S. v. Trenk, 2009 WL 1298420, *2 (D.N.J. 20049)). In applying this standard, if a "'trial judge decides to change or explain an earlier ruling, he should state his reasons on the record.'" In re Pharmacy ...


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