United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE
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
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). (Doc. 1).
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.
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. Since that time, he has filed a
document entitled a “Pro Se Omnibus Pre-Trial
Motion”. (Doc. 35).
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.
Discovery/Bill of Particulars issues.
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.
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).
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.
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.
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).
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.
Motion to suppress search of vehicle.
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
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
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).
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