State of Maine v. Salisbury

• Court: Superior Court of Maine
• Decided: April 10, 2012
• Docket: KENcr-11-573
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION DOCKET NO. CR-11-573 .V,M- KEN,... '-1/to/U?I&

STATE OF MAINE

v. ORDER ON DEFENDANT'S MOTION TO DISMISS AMANDA SALISBURY, INDICTMENT

Defendant

The defendant moves to dismiss the indictment. The defendant argues that

because a grand jury subpoena issued for her confidential banking records from the

Savings Bank of Maine without her knowledge and without compliance with M.R.

Crim. P. 17(c), the indictment must be dismissed. For the following reasons, the motion

is denied.

Pursuant to section 163, it is clear that in criminal proceedings the customer need

not be notified when bank records are subpoenaed:

The court for good cause shown may delay or dispense with service of the subpoena, summons, warrant or court order upon the customer. The court shall delay or dispense with service of the subpoena, summons, warrant or court order upon the customer upon notice by the Attorney General, the Attorney General's designee or the District Attorney that service upon the customer would not be in the public interest. A subpoena, summons or warrant issued in connection with a criminal proceeding or state or federal grand jury proceeding ... need not be served on the customer.

9-B M.R.S. § 163 (2011). Additionally, the Law Court has noted that violation of section

163 does not lead to an exclusion of evidence: "Even if we assume that the State did not

comply with § 163, we would be disinclined at this time to apply an exclusionary rule.

Section 163 does not mandate such a rule, and there is not the slightest suggestion on the facts here that such a rule is necessary to deter unlawful governmental conduct."

State v. FredetteJ 411 A.2d 65, 67 n.4 (Me. 1979); see also Porter v. Norway Sav. Bank,

2011 Me. Super. LEXIS 15, *4 (Feb. 23, 2011) (subpoena requesting certain financial

records that was issued in connection with a grand jury proceeding was found to be

lawful on its face; the subpoena did not have to be served on the customer before the

Bank acted and did not have to certify that it had been served).

The subpoenaed records are not protected from disclosure by a "privilege,

confidentiality protection or privacy protection." M.R. Crim. P. 17(d). Accordingly, the

Rule 17(d) procedure was not required.

The entry is

The Motion to Dismiss Indictment is DENIED.

Date: April 10, 2012 ancy Mills Justice, Superior

2 STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. AMANDA J SALISBURY Docket No AUGSC-CR-2011-00573 539 ROME ROAD ROME ME 04963 DOCKET RECORD

DOB: 02/25/1980 Attorney: WALTER MCKEE State's Attorney: EVERT FOWLE MCKEE LAW PA 133 STATE STREET PO BOX 258 AUGUSTA ME 04332-0258 RETAINED 09/01/2011

Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C) Filing Date: 07/28/2011

Charge(s)

1 THEFT BY UNAUTHORIZED TAKING OR TRANSFER 08/01/2006 OAKLAND Seq 8424 17-A 353 (1) (B) (1) Class B

Docket Events:

07/29/2011 FILING DOCUMENT - INDICTMENT FILED ON 07/28/2011

TRANSFER - BAIL AND PLEADING GRANTED ON 07/28/2011

TRANSFER - BAIL AND PLEADING REQUESTED ON 07/28/2011

07/29/2011 BAIL BOND- $1,000.00 CASH BAIL BOND SET BY COURT ON 07/28/2011 JOHN NIVISON , JUSTICE 07/29/2011 Charge(s): 1 WARRANT - ON COMP/INDICTMENT ORDERED ON 07/28/2011 JOHN NIVISON , JUSTICE 07/29/2011 Charge(s): 1 WARRANT - ON COMP/INDICTMENT ISSUED ON 07/08/2011

CERTIFIED COPY TO WARRANT REPOSITORY 08/05/2011 Charge(s): 1 WARRANT - ON COMP/INDICTMENT RETURNED ON 08/05/2011

08/08/2011 BAIL BOND- $1,000.00 CASH BAIL BOND FILED ON 08/03/2011

Bail Receipt Type: CR Bail Amt: $1,000 Receipt Type: CK Date Bailed: 08/03/2011 Prvdr Name: AMANDA SALISBURY Rtrn Name: AMANDA SALISBURY

08/08/2011 Charge (s) : 1 HEARING- ARRAIGNMENT SCHEDULED FOR 11/15/2011 at 08:30a.m.

09/01/2011 Party(s): AMANDA J SALISBURY CR 200 Page 1 of 3 Printed on: 04/20/2012 AMANDA J SALISBURY AUGSC-CR-2011-00573 DOCKET RECORD ATTORNEY - RETAINED ENTERED ON 09/01/2011

Attorney: WALTER MCKEE 10/07/2011 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 10/07/2011

DA: WALTER MCKEE 10/07/2011 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 10/07/2011

Attorney: WALTER MCKEE 10/13/2011 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 10/07/2011

10/18/2011 OTHER FILING - OTHER DOCUMENT FILED ON 10/13/2011

DA: ALAN KELLEY STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS 11/15/2011 Charge(s): 1 HEARING - ARRAIGNMENT HELD ON 11/15/2011 M MICHAELA MURPHY , JUSTICE Reporter: JANETTE COOK Defendant Present in Court

READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS 11/15/2011 Charge(s): 1 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 11/15/2011

11/15/2011 Charge(s): 1 TRIAL- DOCKET CALL SCHEDULED FOR 01/03/2012 at 08:30a.m.

11/15/2011 HEARING- MOTION TO DISMISS SCHEDULED FOR 01/03/2012 at 08:30 a.m.

NOTICE TO PARTIES/COUNSEL 11/15/2011 HEARING- MOTION TO SUPPRESS SCHEDULED FOR 01/03/2012 at 08:30a.m.

NOTICE TO PARTIES/COUNSEL 11/15/2011 HEARING- MOTION FOR DISCOVERY SCHEDULED FOR 01/03/2012 at 08:30 a.m.

NOTICE TO PARTIES/COUNSEL 01/03/2012 HEARING - MOTION FOR DISCOVERY NOT HELD ON 01/03/2012

01/03/2012 HEARING - MOTION TO SUPPRESS NOT HELD ON 01/03/2012

01/03/2012 HEARING - MOTION TO DISMISS NOT HELD ON 01/03/2012

01/03/2012 Charge(s): 1 TRIAL - DOCKET CALL HELD ON 01/03/2012 M MICHAELA MURPHY , JUSTICE Defendant Present in Court 01/03/2012 MOTION - MOTION TO SUPPRESS WITHDRAWN ON 01/03/2012

01/03/2012 MOTION - MOTION FOR DISCOVERY GRANTED ON 01/03/2012 M MICHAELA MURPHY , JUSTICE Defendant Present in Court CR 200 Page 2 of 3 Printed on: 04/20/2012 AMANDA J SALISBURY AUGSC-CR-2011-00573 DOCKET RECORD COPY TO PARTIES/COUNSEL 01/03/2012 HEARING- MOTION TO DISMISS SCHEDULED FOR 01/04/2012 at 08:30a.m.

NOTICE TO PARTIES/COUNSEL 01/04/2012 HEARING - MOTION TO DISMISS HELD ON 01/04/2012 M MICHAELA MURPHY , JUSTICE Defendant Present in Court 01/04/2012 MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 01/04/2012 M MICHAELA MURPHY , JUSTICE AFTER HEARING JUSTICE MURPHY RECUSED FROM THIS CASE 01/25/2012 OTHER FILING - OTHER DOCUMENT FILED ON 01/25/2012

Attorney: WALTER MCKEE COPY OF ORDER IN STATE VS KAILE WARREN REGARDING THE MOTION TO DISMIS FILEDIN THIS MATTER. 02/08/2012 NOTE - OTHER CASE NOTE ENTERED ON 02/03/2012 M MICHAELA MURPHY , JUSTICE RECUSED HERSELF 02/08/2012 HEARING- MOTION TO DISMISS SCHEDULED FOR 03/07/2012 at 10:00 a.m.

NOTICE TO PARTIES/COUNSEL 02/08/2012 HEARING - MOTION TO DISMISS NOTICE SENT ON 02/08/2012

03/07/2012 HEARING - MOTION TO DISMISS HELD ON 03/07/2012 NANCY MILLS , JUSTICE Attorney: WALTER MCKEE DA: PAUL RUCHA Defendant Present in Court

TAPE#1506, INDEX#2050 03/07/2012 Charge(s): 1 MOTION - MOTION TO DISMISS UNDER ADVISEMENT ON 03/07/2012 NANCY MILLS , JUSTICE 04/11/2012 Charge(s): 1 MOTION - MOTION TO DISMISS DENIED ON 04/10/2012 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 04/11/2012 MOTION - MOTION TO DISMISS DENIED ON 04/10/2012 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 04/20/2012 Charge(s): 1 TRIAL - DOCKET CALL SCHEDULED FOR 06/05/2012 at 08:30 a.m.

A TRUE COPY ATTEST: Clerk

CR 200 Page 3 of 3 Printed on: 04/20/2012