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United States v. Senke

United States District Court, M.D. Pennsylvania

September 12, 2017

UNITED STATES OF AMERICA
v.
CHARLES J. SENKE, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE

         Before the court for disposition are Defendant Charles J. Senke's pretrial motions. The parties have presented their respective positions, and the motions are ripe for disposition.

         Background

         On December 20, 2016, the grand jury indicted the defendant on charges of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) and online enticement in violation of 18 U.S.C. § 2422(b).[1] (Doc. 1).

         Evidently, the Pennsylvania Attorney General's Office performed an online undercover sting operation attempting to find adults seeking unlawful contact with minors. No minors were involved in the investigation, but rather, an agent masqueraded as a minor on the LGBT dating website, Gay.com. In what was evidently, a protracted investigation, the undercover agent eventually arranged a meeting with the defendant. Defendant was arrested when he arrived for the meeting.

         Originally, charges were brought in Pennsylvania state court. Almost two years later, however, the federal government brought the instant charges against the defendant in this court. The state court charges were dismissed. On December 20, 2016, the court appointed an assistant federal public defender to represent the defendant. In February 2017, the court granted defendant's counsel leave to withdraw and allowed the defendant to proceed pro se.[2] Since that time, he has filed a document entitled a “Pro Se Omnibus Pre-Trial Motion”. (Doc. 35).

         The defendant lists his issues as follows: 1) Motion to dismiss-quash criminal information - habeas corpus; 2) Motion to dismiss indictment; 3) Motion to suppress evidence seized from car; 4) Motion to suppress agent's phone; 5) Motion to sequester all witnesses and non-affiants during omnibus hearing and trial; 6) Motion to notify the United States Attorney of the Defendant's potential entrapment defense; and 7) Motion for leave to file supplemental motions. Defendant has also filed another “Omnibus Pretrial Motion” and many other miscellaneous motions. We will address these issues below.

         I. Discovery/Bill of Particulars issues.

         First, defendant raises some discovery matters. (See Doc. 40 “Pro Se Request for Bill of Particulars”; Doc. 41, “Pro Se Request for Discovery and Inspection”). He asserts that the government has not been forthcoming with all relevant discovery.

         With regard to discovery, Rule 16 of the Federal Rules of Criminal Procedure requires the government, upon defendant's request, to disclose any relevant written or oral statements made by defendant. Fed. R. Crim. P. 16(a)(1)(A-B). Rule 16 also requires the government to produce copies of “books, papers, documents, data photographs, tangible objects, buildings or places” if the item is under government control and is material to preparing a defense. Fed. R. Crim .P. 16(a)(1)(E)(i).

         Here, the United States indicates that the government has already provided relevant discovery to the defendant. (Doc. 49, Gov't Br. at 18). “The Government . . . has provided, and will continue to provide at the appropriate times, discovery of all information covered by this District's standing discovery order, as well as all material required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).” (Doc. 49, Gov't Br. at 27). Further, the government states that if additional discovery becomes available it will provide the discovery to the defendant. Based upon these assertions, the defendant's discovery motion will be denied.

         Defendant, however, indicates that he has not received any of the discovery since he has been granted leave to proceed pro se. If this is the case, and the government merely provided the discovery to the defendant's former counsel, the government will be ordered to provide the discovery directly to the defendant.

         Defendant also seeks a “bill of particulars”. Rule 7(f) of the Federal Rule of Criminal Procedure provides “the court may direct the government to file a bill of particulars.” Fed. R. Crim. P. 7(f). The Third Circuit has indicated that “the purpose of a bill of particulars is to ‘inform the defendant of the nature of the charges brought against him, to adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described defense.'” United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1972).

         A review of the indictment and the affidavit of probable cause reveals that defendant has been adequately informed of the nature of the charges against him so as to prepare his defense. (See Doc. 1, Indictment and Doc. 49-1, Affidavit of Probable Cause). The indictment sets forth the two charges and the dates, or range of dates, on which the government alleges the defendant broke the law. Although otherwise, the indictment is light on details, the affidavit of probable cause filed by the government and authored by Special Agent Justin M. Leri of the Pennsylvania Attorney General's Office provides a detailed description of the allegedly criminal actions of which the government accuses defendant. Accordingly, the motion for a bill of particulars will be denied.

         II. Motion to suppress search of vehicle.

         Subsequent to defendant's arrest on February 4, 2015, authorities sought and obtained a search warrant for his automobile, the automobile which he had driven to the alleged meeting with the individual who defendant may have believed to be a minor. Defendant next seeks to suppress the search of his vehicle. He asserts that “no property inventory sheet” was left in his car. His “laptop was in a laptop case inside a closed briefcase.” (Doc. 29, Motion to Suppress) . The government relies upon the warrant it received for the search to establish the reasonableness of the search. After a careful review, we agree with the government.

         The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.” Skinner v. Rwy. Labor Exec. Ass'n, 489 U.S. 602, 613-14 (1989). By its own terms, the Fourth Amendment prohibits “unreasonable” searches and seizures. Whether a search and seizure is reasonable, “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985).

         Generally a search is considered reasonable if it is performed pursuant to a valid warrant. Maryland v. Dyson, 527 U.S. 465, 467 (1999). The law provides that a valid warrant is one that is 1) based upon probable cause; supported by an oath or affirmation; describes the place to be searched and the things to be seized. United States v. Tracey, 597 F.3d 140, 146 (3d Cir. 2010).

         In the affidavit of probable cause drafted in support of the request for a search warrant, the affiant, Justin M. Leri, explained that he serves as a Special Agent with the Pennsylvania Office of Attorney General's Child Predator Section. (Doc. 49-1, Aff. of Probable Cause, at 3). He described his training, history of investigations and his investigatory duties. (Id.) He further explained the instant investigation. (Id. 3-4). Many of the facts of the investigation are not at issue for purposes of the present motions. Leri conducted an undercover investigation and pretended to be a fourteen-year old male. (Id. at 3). Using this fake identity, the agent created a profile on an adults-only LGBT dating website. (Id.) He communicated on the website and later through emails and text messages with the defendant. (Id. at 3-4). He told the defendant several times that his age was fourteen, but the defendant nonetheless repeatedly asked for nude photographs and agreed to meet with him in Scranton, Pennsylvania - the government alleges that the meeting was for ...


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