E.D.Wis.: SW in tax fraud case wasn’t stale despite some information being years old

Defendants were indicted in a tax fraud scheme, and some of the information used to get the warrant was years old. The court finds it not stale on the totality because it is a records case and it is common that these types of records are kept for a long time. “This type of evidence ‘[is] largely immune from claims of staleness.'” United States v. Ramirez, 2018 U.S. Dist. LEXIS 176024 (E.D. Wis. Aug. 23, 2018), adopted, 2018 U.S. Dist. LEXIS 175664 (E.D. Wis. Oct. 11, 2018):

Finally, defendants argue that the witnesses’ and informants’ information was stale. They assert that many of the statements were given years prior to the search warrant application. (Defs.’ Br. at 6.) This argument is also unpersuasive for two reasons. First, staleness concerns are “rarely relevant” when considering evidence that is not perishable or consumable. See Seiver, 692 F.3d at 778. Special Agent Jones did not seek “‘the type of evidence that rapidly dissipates or degrades.'” Id. (quoting United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010)). Rather, the affidavit was intended to show that there was probable cause to determine that items such as notebooks, payment ledgers, bank statements, receipts, and other evidence of a tax fraud scheme would be located at defendants’ business and home. This type of evidence “[is] largely immune from claims of staleness.” See United States v. Floyd, 740 F.3d 22, 34 (1st Cir. 2014) (internal citation omitted). Second, evidence suggested that the tax scheme was ongoing. Special Agent Jones’ inquiry showed tax returns submitted from the home and business up until March 2017.

Looking at the affidavit in its totality, given the number of witnesses involved, the similarity of their stories, the ongoing nature of the activity alleged, and the corroborating IRS documents, the warrant was supported by probable cause. Accordingly, I am persuaded that Magistrate Judge Duffin had a substantial basis for determining that, under the totality of the circumstances, there was a fair probability that evidence relating to tax fraud would be recovered at defendants’ home and business. To be clear, for the same reasons, the warrant to search the storage unit was also supported by probable cause.

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