United States District Court, M.D. Pennsylvania
JAMES M. MUNLEY United States District
instant criminal matter, the United States of America
(hereinafter “the government”) charges Defendant
Charles Musto (hereinafter “defendant”) with
crimes arising from the filing of a joint federal income tax
return for the calendar years 2009 and 2010. Before the court
for disposition are the defendant's motions to dismiss
the superseding indictment (Doc. 44) and to suppress evidence
(Doc. 16). For the reasons explained below, we will deny both
Jury in the Middle District of Pennsylvania indicted the
defendant on April 12, 2016. (Doc. 1, Indictment). The
one-count indictment charged the defendant with filing a
false tax return for the calendar year 2009 in contravention
of 26 U.S.C. § 7206(1).
April 28, 2016, the government executed five (5) search
warrants at three (3) locations and seized approximately
twenty (20) boxes of paper records and eleven (11) electronic
hard drives. (Docs. 16-6 to 16-10, Exs. D-1 to D-5, Search
and Seizure Warrants dated 4/27/16; Doc. 16-12, Ex. F, Search
Warrant Items to be Seized). Subsequent to the search and
seizure of defendant's property, the Grand Jury returned
a superseding indictment adding two additional charges. Count
II charges the defendant with filing a false tax return for
the calendar year 2010, in violation of 26 U.S.C. §
7206(1). Count III charges the defendant with tax obstruction
in contravention of 26 U.S.C. § 7212(a).
17, 2016, the defendant filed a motion to suppress all
evidence directly and derivatively obtained by the government
arising from the government's execution of five (5)
search warrants on April 28, 2016. (Doc. 16). Additionally,
on October 11, 2016, the defendant filed a motion to dismiss
the superseding indictment. (Doc. 44). The court held an
evidentiary hearing addressing these motions on January 9,
2017. (Doc. 57, 58). At the conclusion of the evidentiary
hearing, the court directed the parties to submit post
hearing briefs with citations to the record. (Doc. 59, 60).
Having received the parties post-hearing submissions, the
matter is ripe for disposition.
defendant moves to dismiss the superseding indictment,
asserting that the government's investigation and
prosecution of this matter eviscerated his constitutionally
protected due process rights under the Fifth
Amendment and Sixth Amendment right to
counsel. Alternatively, the defendant moves to
suppress all evidence arising from the government's
execution of five (5) search warrants on April 28, 2016,
arguing the government lacked probable cause to obtain these
search warrants. The court will address these motions in
defendant first seeks to dismiss the superseding indictment
pursuant to the Fifth Amendment's Due Process Clause and
Sixth Amendment's right to counsel. To warrant the
extreme sanction of dismissal of the indictment under the
Fifth and Sixth Amendments, the defendant must demonstrate
that the government's misconduct caused the defendant to
suffer substantial prejudice. See United States v.
Voigt, 89 F.3d 1050, 1064, 1067 (3d Cir. 1996) (stating
that to offend due process under the Fifth Amendment, the
government's misconduct must shock the universal sense of
justice, and the defendant must establish actual and
substantial prejudice); United States v. Morrison,
449 U.S. 361, 364 (1981) (holding that the defendant must
demonstrate prejudice, or a substantial threat thereof, to
obtain dismissal under the Sixth Amendment).
instant matter, the defendant alleges that the
government's conduct during and after the execution of
five (5) search warrants on April 28, 2016 demonstrates
substantial prejudice. As previously stated, on April 28,
2016, the government executed five (5) search warrants at
three buildings: (1) defendant's personal residence; (2)
defendant's periodontal office; and (3) a building
associated with defendant's real estate entities. (N.T.
at 50-51, 57-58; Docs. 16-6, 16-7, 16-8, 16-9, and 16-10).
searching defendant's house, Special Agent Marita Gehan
(hereinafter “SA Gehan”) located a notebook.
(N.T. at 114). The notebook had the phrase
“attorney-client privilege” marked on the front
cover. (N.T. at 114). SA Gehan briefly reviewed the notebook
and determined the notebook may contain privileged materials.
(N.T. at 114-15). As such, SA Gehan segregated the notebook
from other seized materials. (N.T. at 114-15).
to SA Gehan segregating the notebook, Supervisory Special
Agent Ben Wylam (hereinafter “SSA Wylam”) arrived
at her search area. (N.T. at 114-15; 148-49). SA Gehan
advised SSA Wylam she had located a notebook. (N.T. at 116).
SSA Wylam located the notebook and flipped through the
notebook's contents. (N.T. at 149). Prior to discussing
whether to seize the notebook with SA Gehan, SSA Wylam
ensured no other agents were located in their vicinity,
including the lead investigating case agent-Special Agent
Maria Grabinski (hereinafter “SA
Grabinski”).(N.T. at 159).
Wylam next advised SA Gehan not to discuss the notebook with
other agents or prosecutors. (N.T. at 149). Specifically, SSA
Wylam stated that:
if she believed [the notebook] should be seized, seize it.
Place it in an envelope and have the evidence envelope
sealed, to indicate on the outside of the evidence envelope
the notebook with the annotation of attorney-client privilege
and make sure that it is annotated on the inventory records
so it kind of puts a spotlight on it. My conversation to her
was, you can't really unsee what you already have seen.
(N.T. at 149). Finally, SSA Wylam reiterated to SA Gehan not
to discuss anything with any other special agent or the
prosecuting attorneys. (N.T. at 149).
thereafter, SA Gehan placed the notebook into an evidence
envelope and appropriately labeled the envelope
attorney-client privilege. (N.T. at 116). SSA Wylam removed
the envelope from defendant's home and transported it to
the federal building in Scranton. (N.T. at 151). The lead
case agent, SA Grabinski, did not travel back to Scranton
with SSA Wylam. (N.T. at 162-63). Rather, SSA Wylam traveled
alone from the defendant's residence in Forty Fort to
Scranton. (N.T. at 163).
to arriving at the federal building in Scranton, SSA Wylam
immediately delivered the notebook to the filter attorney,
AUSA Fran Sempa. (N.T. at 153). AUSA Sempa reviewed the
notebook's contents. (N.T. at 153). Shortly thereafter,
AUSA Sempa determined the notebook contained protected
attorney-client materials, and he returned the notebook to
defense counsel the very next day. (N.T. at 153).
with this undisputed evidence, the defendant first contends
that the government's outright seizure of his
attorney-client notebook demonstrates substantial prejudice.
Specifically, the defendant argues that the government's
seizure of this notebook violated the government's search
protocol pertaining to the handling of potentially privileged
information. We disagree.
to the search protocol, the government created a filter team,
or taint team, comprised of an Assistant United States
Attorney and other agents. (N.T. at 52-55). The taint team
reviewed all potentially privileged materials seized on April
28, 2016. (N.T. at 154). If the filter attorney determined
the seized materials were privileged, these materials were
returned to defense counsel, without the prosecution team
ever reviewing them. (N.T. at 154-55).
the government's temporary seizure of the defendant's
notebook fails to demonstrate substantial prejudice.
Initially, SA Gehan appropriately seized the defendant's
notebook to ensure the defendant had not concealed any
relevant information under the guise of an attorney- client
notebook. Also, prior to SA Gehan and SSA Wylam discussing
the notebook at the defendant's residence, SSA Wylam
ensured no government agents were present, including the lead
case agent SA Grabinski. SSA Wylam also repeatedly advised SA
Gehan not to discuss the notebook with other agents or the
prosecuting attorneys. Finally, SSA Wylam immediately
delivered the notebook to the filter attorney for review.
Thus, the government's temporary seizure of this notebook
fails to demonstrate substantial prejudice.
defendant next argues that SSA Wylam's decision on April
28, 2016, to flip through defendant's notebook
immediately after receiving it from SA Gehan caused
substantial prejudice. The undisputed hearing evidence, however,
demonstrates that the instant SSA Wylam flipped through the
notebook, he immediately transferred from the prosecution
team to the filter team, and he ceased all communication with
SA Grabinski and the prosecuting attorneys regarding
defendant's criminal prosecution.
to the execution of the search warrants, SSA Wylam did indeed
assist the prosecution team and had a limited supervisory
role in defendant's investigation. (N.T. at 56, 138-49).
Specifically, SSA Wylam reviewed the case three times a year
with SA Grabinski, assisted SA Grabinski with interviews, and
reviewed the affidavit of probable cause.(Doc. 59, Notes of
Testimony dated 1/9/17 (hereinafter “N.T.”)
1/9/17 at 139-40).
April 28, 2016, SSA Wylam's role in the criminal
prosecution changed. Within seconds of reviewing the
notebook's contents, SSA Wylam understood that he could
no longer participate in the investigation. (N.T. at 160-61).
Instead, SSA Wylam walled himself off ...