# United States v. Jonathan David Brown

> Court of Appeals for the Sixth Circuit · May 11, 1995 · 49 F.3d 1162

URL: https://www.frixlaw.com/law-library/cases/9487905

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Jonathan David BROWN, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 11, 1995
- **Citations:** 49 F.3d 1162
- **Precedential status:** Published
- **Opinion:** Dissent by Batchelder
- **Judges:** Martin, Batchelder, Enslen
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9487905

## How later opinions describe it (automated extraction)

- holding that section 1982 must be construed broadly to encompass the “use” of property; also citing with approval Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1337-38 (2d Cir.1974), in which African-American children were impermissibly denied certain rights to use a sw…
- stating that “non-owners of property who nevertheless have an interest in using or holding that property have a viable property interest protected under Section 1982”
- concluding that non-owners’ “use” of property is a protected civil right under § 1982
- explaining that § 1982 protects the right “to hold and use real property”

## Opinion text

' BATCHELDER, Circuit Judge,
dissenting.
The activity to which this defendant was convicted of being an accessory is so offensive that it would be much more agreeable to concur in the majority’s opinion. It is disheartening that as we mark the fiftieth anniversary of the liberating of the Nazi death camps, we are still combatting anti-semitism here at home. But I must dissent because I believe the majority is simply wrong, both in its analysis of the 42 U.S.C. § 1982 issue and in its treatment of the Fourth Amendment claim.
I.
Count I of the indictment' in this case charges defendant Brown as an accessory after the fact for assisting Damion Patton in evading capture in connection with a crime against the United States. The Government contends that the synagogue shooting was a conspiracy between Patton and Leonard Armstrong, in violation of 18 U.S.C. § 241 , 1 *1170 to intimidate Jewish citizens 2 in the exercise of their rights to hold and use property in the same manner as enjoyed by all citizens, in violation of 42 U.S.C. § 1982 . 3 The Government states that “as a result of the shooting the rights of Jewish citizens to use the facility were impaired.”
Defendant Brown points out that the West End Synagogue is owned by a corporation and not by Jewish citizens. Therefore, Brown contends that the synagogue shooting did not deny any Jewish “citizens” their right to “hold” property, because neither private nor public corporations are citizens within the meaning of the Fourteenth Amendment. See South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 503-04 (6th Cir.1986). The debate on this issue centers on whether, by explicitly protecting a citizen’s right to hold property, § 1982 also implicitly protects a citizen’s right to use property in which he has no ownership or lesser possessory interest'.
The majority relies on the only circuit court decision to have reached the conclusion that § 1982 protects a citizen’s right merely to use property, United States v. Greer, 939 F.2d 1076, 1091 (5th Cir.1991). Greer involved facts remarkably similar to the present case: Members of a skinhead group were charged, in part, with violating 18 U.S.C. § 241 by defacing and vandalizing a Jewish temple that was owned by a non-profit corporation. The defendants argued that the evidence did not prove they violated the prohibition of 42 U.S.C. § 1982 on depriving citizens of their right to hold property because a corporation was not a citizen. Greer, 939 F.2d at 1091 . The Fifth Circuit rejected this assertion and, citing to Jones v. Alfred H. Mayer Co., 392 U.S. 409 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968), and City of Memphis v. Greene, 451 U.S. 100 , 101 S.Ct. 1584 , 67 L.Ed.2d 769 (1981), as authority for the proposition, held that “the phrase ‘to hold’ property under the statute can also mean ‘to use’ property. In this way, the government is able to establish that members and nonmembers of the temple ... could claim that the acts of defendants violated their right to use this property.” Greer, 939 F.2d at 1091 (citations omitted).
However, Jones and Greene do not support the Fifth Circuit’s position. Jones held that § 1982 extends to private as well as governmental acts of discrimination in the sale or rental of property and that the authority of Congress to enforce the Thirteenth Amendment includes the power to eliminate all racial barriers to the acquisition of real and personal property. Certainly the Court discussed at length the legislative history of § 1982, referring specifically to the remarks of Senator Trumbull that the bill 4 would secure for all citizens the “ ‘great fundamental rights,’ ” which consisted of “ ‘the right to acquire property, the right to go and come at pleasure, .the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property.’ ” Jones, 392 U.S. at 432 , 88 S.Ct. at 2199 (quoting Cong. Globe, 39th Cong., 1st Sess. 475 (1866) (statement of Sen. Trumbull)). However, nothing in that discussion or any other discussion in Jones permits its citation for the proposition that “‘to hold’ property under [§ 1982] can also mean ‘to use’ property.” 5 Greer, 939 F.2d at 1091 .
*1171 In City of Memphis v. Greene, 451 U.S. 100 , 101 S.Ct. 1584 , 67 L.Ed.2d 769 (1981), the Supreme Court held that the city’s closing of part of a street leading from a white section of the city to a predominantly black section did not violate § 1982. There, the Court said,
To effectuate the remedial purposes of the statute, the Court has broadly construed [§ 1982] to protect not merely the enforceability of property interests acquired by black citizens but also their right to acquire and use property on an equal basis with white citizens.
Id. at 120, 101 S.Ct. at 1597 (emphasis added). After discussing the line of cases that demonstrated this broad construction of § 1982’s language, the Court held:
Therefore, as applied to this case, the threshold inquiry under § 1982 must focus on the relationship between the street closing and the property interests of the re-spondents_ [T]he statute would support a challenge to municipal action benefiting white property owners that would be refused to similarly situated black property owners. For official action of that kind would prevent blacks from exercising the same property rights as whites_ Alternatively, ... the statute might be violated by official action that depreciated the value of property owned by black citizens.... Finally, the statute might be violated if the street closing severely restricted access to black homes, because blacks would then be hampered in the use of their property. ...
... [the street closing] does not involve any impairment to the kind of property interests that we have identified as being within the reach, of § 1982.
Id. at 123-24, 101 S.Ct. at 1598 (emphasis added).
The language of § 1982 does not include among the rights it protects the right to “use and “enjoy” property or the right to “go and come at pleasure.” But this is the full extent of the right which the Government claims this defendant was an accessory to abridging. Although both Jones and Greene refer to the “broad” construction of § 1982, they do so in the context of a citizen’s discernible property right. Jones stands for the proposition that private as well as governmental conduct is subject to the mandates of § 1982; Greene states that the right to acquire and use property is protected by § 1982. However, neither supports the proposition set forth in Greer that the phrase “to hold” can also mean “to use.”
Furthermore, the case at hand is distinguishable from the eases holding that when an organization links membership benefits to residency, those benefits become part of the bundle of rights acquired through residency and that § 1982 guarantees all citizens the right to purchase the same bundle. Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 437 , 93 S.Ct. 1090, 1093-94 , 35 L.Ed.2d 403 (1973); see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 236-37 , 90 S.Ct. 400, 404-05 , 24 L.Ed.2d 386 (1969); Wright v. Salisbury Club, Ltd., 632 F.2d 309, 316 (4th Cir.1980). In Tillman , for example, the by-laws of an all-white community swimming pool club granted people living, within a geographic preference area the right to join without an endorsement from a current member. Tillman, 410 U.S. at 431-32 , 93 S.Ct. at 1091 . The Tillman court held that
[w]hen an organization links membership benefits to residency in a narrow geographical area, that decision infuses those benefits into the bundle of rights for which ah individual pays when buying or leasing within the area. The mandate of 42 U.S.C. § 1982 then operates to guarantee a nonwhite resident, who purchases, leases, or *1172 holds this property, the same rights as are enjoyed by a white resident.
Id. at 437 , 93 S.Ct. at 1094 . These cases support Brown’s assertion that, before a person is entitled to § 1982 protection for “use” of the property, he must “hold” the property through some form of acquisition. 6
Two additional cases cited by the Government deserve comment. In Walker v. Pointer, 304 F.Supp. 56 (N.D.Tex.1969), a district court held that § 1982 protected white apartment tenants from eviction for having black guests because the § 1982 right “to hold” property included the freedom of blacks to go and come at the invitation of persons lawfully in control of the apartment. Id. at 61-62. Recognizing that “freedom to ‘go and come at pleasure’ is not to be asserted ás a right under section 1982 regardless of the circumstances,” id. at 62, that court nonetheless held that Jones stood for that very proposition. Id.
In Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir.1974), a case on which the majority here relies, the Second Circuit first acknowledged that “the condition of being a guest is not normally considered a ‘property' right one can ‘hold,’” and then, citing Jones , held precisely that. Id. at 1339.
Upon being invited by a member of the club, a black, child becomes an invitee of that member with certain rights pursuant thereto. Whether these rights are denominated licenses, easements or usufructs, the guest has an interest in his guest status which the law may protect from certain invasions.
Id. (citations omitted).
Both the Walker and Olzman courts seized on the phrase “to go and come at pleasure” from the discussion in Jones of § 1982’s legislative history to justify expanding the reach of § 1982 beyond its guarantee of the rights to “inherit, purchase, lease, sell, hold, and convey real and personal property.” Because Greer relied on Walker, Greer implicitly hinged on this language as wfell. But nothing in Jones justifies this result. 7
Finally, the majority includes a discussion of Shaare Tefila Congregation v. Cobb, 481 U.S. 615 , 107 S.Ct. 2019 , 95 L.Ed.2d 594 (1987), and cases following it, and concludes that “[t]he legislative history therefore supports the proposition that a Jewish person’s ‘use’ of property is protected under Section 1982.” But Shaare Tefila held only that Jews could state a claim of racial discrimination under § 1982. Id. at 617-18, 107 S.Ct. at 2022 . Although the facts in that ease were very similar to those in the case before us and the petitioners in Shaare Tefila had brought an action under § 1982, the district court had not reached the merits of the case but had dismissed the complaint on the grounds that Jews were ..not among those Congress intended for § 1982 to protect. The issue of whether § 1982 protects the right to “use” property was therefore neither before the Supreme Court nor addressed by it.
In my view, Greer represents an overex-tension of Supreme Court precedent and should not be followed by this Circuit. I would hold that § 1982 does not extend to a person who merely uses but does not hold property. Furthermore, I note that Congress specifically criminalized the kind of behavior at issue in this case under 18 U.S.C. *1173 § 247 . 8 While I am entirely in sympathy with the Government’s desire to prosecute the kind of loathsome activity committed by Patton and Armstrong, to which this defendant was an accessory, I believe that it is properly the function of Congress to provide the means to do so, either by amending § 1982 to include among its protections the use of property by those who hold no property right in it, or by amending 18 U.S.C. § 247 to cover such activity resulting in damage in lesser dollar amounts. I would reverse Brown’s conviction on Count I.
II.
The majority disposes of defendant Brown’s Fourth Amendment claim by concluding that even if the search warrant did not expressly list some of the items seized, these items were reasonably related to the underlying offense and, therefore, the officers could seize them. The majority, however, fails to address the real issue, namely, that the two warrants used in the search of Brown’s apartment are invalid.
As a preliminary matter, the majority notes that Brown unconventionally raises this claim by a motion to return property, instead of a motion to suppress evidence. First of all, Rule 41(e) explicitly provides for the filing of a motion for return of property by a person aggrieved by an unlawful search and seizure, and provides that when such a motion is filed after an indictment, it “shall be treated also as a motion to suppress under Rule 12.” Fed.R.Crim.P. 41(e). Second, Brown is a pro se appellant and we are obliged to construe his pleadings liberally. Myers v. United States, 636 F.2d 166, 168 (6th Cir.1981). Brown’s pre-trial “Motion to Return Property” was filed for exactly the same purpose as would be a motion to suppress evidence — Brown believed the Government had seized his property in violation of the Constitution and he wanted his property returned so that the Government could not use it against him at trial. Brown’s motion is entirely proper.
The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. The Supreme Court has stated that “a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” United States v. Chadwick, 433 U.S. 1, 9 , 97 S.Ct. 2476, 2482 , 53 L.Ed.2d 538 (1977); see National Treasury Employees Union v. Von Raab, 489 U.S. 656, 667 , 109 S.Ct. 1384, 1391-92 , 103 L.Ed.2d 685 (1989).
A warrant constitutes a limitation on the right of the government to search and to seize an individual’s property. The courts do not, however, require nit-picking adherence to technicalities in determining whether the search and seizure authorized, by a warrant are sufficiently defined to make the warrant valid. ‘We are concerned with realities of administration of criminal justice. ' It is sufficient if the warrant signed by the judicial officer is particular enough if read “with reasonable effort’ by the officer executing the warrant.” Moore v. United States, 461 F.2d 1236, 1238 (D.C.Cir.1972).
There are two aspects to the particularity requirement. First, the warrant must provide a particular description of the places to be searched and the things to be seized. Marron v. United States, 275 U.S. 192, 195-96 , 48 S.Ct. 74, 75-76 , 72 L.Ed. 231 (1927). Second, the warrant should provide a sufficiently detailed explanation of the suspected criminal activity that occasions the search to enable the executing officers to limit their search to evidence relating to that criminal activity and to inform the subjected individual what property the officers are entitled to *1174 take. Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987). Inclusion of a statutory reference can provide the necessary particularity if the statute itself is sufficiently narrow to limit the scope of the search. Id. at 909 . However, where the only limitation on the search and seizure is provided by the reference in the'warrant to several statutes, some of which are very broad in scope, courts have held that the warrant contains no limitation at all. United States v. Spilotro, 800 F.2d 959, 965 (9th Cir.1986); United States v. Roche, 614 F.2d 6, 8 (1st Cir.1980).
■Inadequacy of the warrant in one of these respects may be compensated for by specificity and completeness in the other, but to be valid, the warrant must contain the information necessary to properly limit the search and seizure. Spilotro, 800 F.2d at 964 (“[T]he government could have narrowed most of the descriptions in the warrants either by describing in greater detail the items one commonly expects to find on premises used for the criminal activities in question, or, at the very least, by describing the criminal activities themselves rather than simply referring to the statute believed to have been violated.”). Therefore, a warrant is facially invalid if it neither particularly describes the places to be searched and the things to be seized nor.adequately describes the suspected criminal conduct to which the search is related.
This Circuit has adopted the express incorporation rule for cases in whifeh the warrant does not, on its face, meet the Fourth Amendment’s particularity requirements. United States v. Blakeney, 942 F.2d 1001 (6th Cir.1991), cert. denied, 502 U.S. 1035 , 112 S.Ct. 881 , 116 L.Ed.2d 785 (1992). Although a “fundamental distinction” exists between a warrant and its underlying affidavit, Moore, 461 F.2d at 1238 , a court may construe a warrant with reference to its affidavit for purposes of the particularity requirement if the magistrate manifested an explicit intention to incorporate the affidavit. Id.
In Blakeney , we followed the D.C. Circuit’s holding in United States v. Maxwell, 920 F.2d 1028 (D.C.Cir.1990). According to Maxwell , an affidavit can fulfill the particularity requirement for a facially void warrant only if “ ‘ “(1) the affidavit accompanies the warrant, and in addition (2) the warrant uses ‘suitable words of reference’ which incorporate the affidavit by reference.” ’ ” Id. at 1031 (quoting United States v. Vaughn, 830 F.2d 1185, 1186 (D.C.Cir.1987) (citations omitted)). In Blakeney , this Court held that the express incorporation requirements of Maxwell were met by a warrant that expressly incorporated one affidavit, and that affidavit expressly incorporated a second affidavit which contained the required particularity, and both affidavits were attached to the warrant. Blakeney, 942 F.2d at 1024 .
Although the warrant in Maxwell contained no description of either the place to.be searched or the specific things to be seized, the warrant did expressly incorporate a description of the premises and a description of the categories of items to be seized. Maxwell, 920 F.2d at 1031 . Both of these descriptions were attached to the application for the search warrant and the application was attached to the warrant itself. Id. at 1031 & n. 1. However, there was no language in the warrant expressly incorporating an affidavit that provided details of the wire fraud scheme the appellant was suspected of perpetrating. Id. at 1032 . The court found that without this affidavit, the warrant was fatally overbroad. Id. at 1033 . Because the incorporated description of items to be seized listed only categories of items rather than specific items, those categories were limited only by the description’s statement that they were all evidence of wire fraud in violation of 18 U.S.C. § 1343 , and the court found that this reference to a broad federal statute constituted “no limitation at all.” Id. 9
I am aware that this court in United States v. Gahagan, 865 F.2d 1490 (6th Cir.), cert. denied, 492 U.S. 918 , 109 S.Ct. 3242 , 106 L.Ed.2d 590 (1989), did find valid a search *1175 pursuant to a warrant that inadequately described the premises to be searched, even though the affidavit that more adequately described the premises was neither attached nor expressly referred to in the warrant. However, that case is clearly limited to curing warrants that erroneously describe a place to be searched when the affidavit is readily available to the executing officers and the affiant participates in the actual search. Id. at 1497, 1499. The warrant in Gahagan described a particular premise to be searched as “7609 Douglas Lake Road,” whereas the affidavit also noted that “located on the property is a single story wood frame log cabin-type structure.” Id. at 1492 . The log cabin, as it turned out, was a separate residence with its own address of 7577 Douglas Lake Road. Id. at 1493 . The Gahagan court upheld the search after noting that the affiant participated in the search and that courts have upheld searches when the warrant listed an incorrect address (often due to a typographical error) and the affiant was on the scene and pointed out the correct house. Id. at 1497-98 . Gahagan stretches the express incorporation rule, but it does so only when, although the warrant incorrectly describes the place to be searched, the affidavit particularly describes the place and the affi-ant participates in the search.
The facts in the case before, us are not like those in Gahagan . Nor is this ease analogous to Blakeney or Maxwell . Although Special Agent Dillender was the affiant and was one of the agents who participated in the search, this was not a case in which the description in the warrant was simply erroneous. Here, the second warrant, which the Government contends authorized a search of Brown’s apartment at 902 Cedar Pointe Parkway for Damion Patton, did not include any description of any location. Instead, the warrant was captioned “In the Matter of the Search of Damion Patton,” and stated that affidavits were made to the magistrate by Special Agent Deborah Dillender, who “has reason to believe that on the person of Damion Patton ... there is now concealed a certain person or properly, namely Damion Patton.” The first warrant, while correctly describing the place to be searched, was entirely blank as to the things to be seized.
Neither warrant incorporated any affidavit, or contained any reference to an affidavit except for some preprinted language to the effect that “affidavit(s)” which established probable cause were made to the magistrate — the same preprinted boilerplate that the Maxwell court specifically held to be insufficient to incorporate, an affidavit into the warrant. Maxwell, 920 F.2d at 1032 . Incorporation requires “‘suitable words of reference’ evidencing the magistrate’s explicit intention to incorporate the affidavit.” Id. While the applications for the warrants contained the phrase “see attached affidavit,” we do not know whether those applications were attached to the warrants. Even assuming the applications were attached, however, it is obvious from the record that no affidavits were attached to the applications. In short, it is clear that not only were there no affidavits incorporated into or attached to the warrants, there were no affidavits available to the agents or the defendant at the scene of the search, and, in fact, as is more fully discussed below, the only affidavit was under seal.
Neither warrant contained any indication of the criminal activity in which the defendant was suspected of being involved. Indeed, neither warrant even contained any reference to any criminal statutes. 10 The applications for the warrants, however, contained a reference to five separate sections of Title 18 of the United States Code. One of these sections, 18 U.S.C. § 371 , prohibits conspiracies to commit any offense against the United States; another section, § 241, prohibits conspiracies to violate the civil rights of any individual. It is difficult to imagine any broader statutes. These statutory references in the applications for warrants, even if the applications were attached to the warrants, provide no limitations on the *1176 search whatsoever. See Spilotro, 800 F.2d at 959 .
One of the reasons for a strict attachment requirement, and for a warrant requirement in general, is that a citizen has a right to know why the police are invading his home and his privacy. In Moore v. United States, the D.C. Circuit stated,
The requirement that the affidavit be attached to or inserted in the warrant is not a mere formality. It makes the affidavit of probable cause immediately available to the person whose premises are entered, and explains to him at the outset the reason for this intrusion on his privacy. And it avoids any possible claim or suspicion by the citizen involved that the. affidavit later located in the official file was inserted after the fact of the search.
Moore, 461 F.2d at 1239 . 11 In the case before us, Brown received no explanation when his apartment was searched regarding either probable cause for the search or the limitations on the search.
The Government disingenuously avoids addressing this issue by simply arguing that the supporting affidavit was sufficient. The majority opinion decides the issue as the Government has framed it, asserting that evidence not described in a warrant may be seized if “reasonably related” to the warrant’s underlying offense. The cases cited by the majority certainly do stand for this proposition. However, those cases involve searches under valid warrants. In United States v. Fortenberry, 860 F.2d 628 (5th Cir.1988), the police were searching pursuant to a valid warrant and “came across” reasonably related evidence. Id. at 636 . In United States v. Korman, 614 F.2d 541 (6th Cir.), cert. denied, 446 U.S. 952 , 100 S.Ct. 2918 , 64 L.Ed.2d 808 (1980), the police were searching pursuant to a “lawfully executed search warrant” and seized “an instrumentality of a crime” in the form of a ski jacket, which was in plain view but listed only in the affidavit. Id. at 547. In the case before us, the police were not searching pursuant to a valid warrant. The type of evidence seized and its relationship to the underlying crime are simply not relevant here.
Had the affidavit accompanied or been attached to the warrants in this case, perhaps this court could incorporate that affidavit into the warrants using the rationale of Maxwell . The warrants then would have been sufficient to satisfy the requirements of the Fourth Amendment. But the affidavit was not with the warrants. This fact, although never mentioned by either the Government or the majority opinion, is inescapable from the record. First, the warrants contained in the Joint Appendix do not have any affidavits attached. Second, it is apparent from the trial court docket that the affidavit supporting the issuance of these warrants was sealed. The docket demonstrates that Brown moved to have that affidavit unsealed: “(37) 1-9-92 BROWN — MOTION by Deft to Unseal Search Warrant Documents in # 90-3155 and #90-3157 relating to this Case” (these case numbers are the warrant numbers). That motion was denied. Third, Brown’s first Motion to Return Property states that the affidavit was not attached, and his affidavit filed with that motion describes the events of the search and states that Special Agent Dillender handed him the two search warrants, but the affidavit “had been ripped off.” Finally, the Government’s response to that motion, dated January 24, 1992, indicates that Brown had not seen the affidavit as of that date:
In June, 1990, a search warrant was lawfully issued by a federal magistrate in Nashville based on an affidavit prepared and signed by Special Agent Deborah Dil-lender of the Federal Bureau of Investigation. The affidavit is attached and is being provided to defendant Brown.
(Emphasis added).
These warrants are so facially deficient that the evidence seized should have been suppressed. In United States v. Leon, 468 U.S. 897, 923 , 104 S.Ct. 3405, 3421 , 82 *1177 L.Ed.2d 677 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule does not apply when an officer acted “in objectively reasonable reliance on a subsequently invalidated search warrant.” Id. at 922 , 104 S.Ct. at 3420 . The Leon Court, however, set forth four exceptions to the objectively reasonable standard, one of which is that “depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in faffing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Id. at 923 , 104 S.Ct. at 3421 . In my view, the officers who executed this warrant, including Special Agent Dillender, upon whose affidavit the warrant issued, could not reasonably have believed that these virtually blank warrants were valid.
The Fourth Amendment’s particularity requirement protects the individual from a “general, exploratory rummaging in a person’s belongings.” Andresen v. Maryland, 427 U.S. 463, 480 , 96 S.Ct. 2737, 2748 , 49 L.Ed.2d 627 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467 , 91 S.Ct. 2022, 2038 , 29 L.Ed.2d 664 (1971)). Furthermore, “[a] warrant must not leave it to the discretion of the executing officers what is, or is not, to be seized.” White Fabricating Co. v. United States, 903 F.2d 404, 410 (6th Cir.1990). Finally, the warrant “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Chadwick, 433 U.S. at 9 , 97 S.Ct. at 2482 . It is unfortunately clear that some courts appear to have lost sight of these fundamental principles and appear to be willing to fudge considerably on their own pronouncements on the particularity requirements for search warrants. 12 But that is no reason for this court to do so. It is precious little protection to an individual to have police officers arrive with a warrant that contains neither any explanation of the reason for the search, nor any particularized description of places to be searched and things to be seized, nor any reference to an affidavit containing such particularity, nor any affidavit itself. It is not a demonstration of adherence to technicalities to conclude that warrants such as the ones in this case authorized a general search. In theory, at least, general searches are still unconstitutional. I therefore dissent from Part III of the majority opinion.
III.
Finally, I concur with the majority’s conclusion, although on different reasoning, that Brown’s perjury convictions should be affirmed. A federal grand jury has jurisdiction to investigate “conduct that might have been a federal crime” that occurs within the territory of the federal court which convenes it. United States v. McInnis, 601 F.2d 1319, 1327-28 (5th Cir.1979), cert. denied, 445 U.S. 962 , 100 S.Ct. 1649 , 64 L.Ed.2d 237 (1980)). A person who testifies falsely before that grand jury properly may be charged with perjury, even if the grand jury is investigating acts that ultimately are not found to be federal crimes. Id. Furthermore, neither the government’s anticipation that a witness might commit perjury nor its subsequent offer to plea bargain the perjury charge alters the fact that perjury was committed. United States v. Chen, 933 F.2d 793, 797-98 (9th Cir.1991).
The Government did not set a “perjury trap” for Brown, and the grand jury had jurisdiction to investigate Brown’s conduct, which might have constituted a federal crime. Brown had a duty to tell the truth under oath. Instead he lied. Brown’s assignment *1178 of error relative to his perjury convictions is without merit.
. If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State ... in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United *1170 States, or because of his having so exercised the same;
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both;....
18 U.S.C.A. § 241 (West Supp.1994). This statute has subsequently been amended in a manner that does not affect this opinion.
. The Supreme Court extended § 1982 to Jewish people in Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 , 107 S.Ct. 2019, 2021-22 , 95 L.Ed.2d 594 (1987).
. All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
42 U.S.C.A. § .1982 (West 1994).
. Senator Trumbull was speaking in regard to the Senate version of the Civil Rights Act of 1866, which included what is now § 1982.
. In fact, the Jones Court began its analysis with an "important” clarification of the precise scope of § 1982. Jones, 392 U.S. at 413 , 88 S.Ct. at 2189 . According to the Court, § 1982, “[i]n sharp contrast” to the Civil Rights Act of 1968, was not a comprehensive anti-discrimination law. Id. “[Section 1982] does not deal specifi *1171 cally with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling. It does not prohibit advertising or other representations that indicate discriminatory preferences. It does not refer explicitly to discrimination in financing arrangements or in the provision of brokerage services. It does not empower a federal administrative agency to assist aggrieved parties. It makes no provision for intervention by the Attorney General. And, although it can be enforced by injunction, it contains no provision expressly authorizing a federal court to order the payment of damages.” Id. at 413-14, 88 S.Ct. at 2189-90 (footnotes omitted). Thus, such an extension of- § 1982 would require “congressional action.” Id. at 415, 88 S.Ct. at 2190 .
. Furthermore, even when a person holds property, its damage or destruction might not create a § 1982 claim. In Stackhouse v. DeSitter, 620 F.Supp. 208 (N.D.ILL.1985), a white person firebombed a black person's car, but the district court refused to find this act a violation of § 1982. Id. at 209-10.
. The Civil Rights Act of 1866 also gave all citizens the right "to make and enforce contracts,” which became 42 U.S.C. § 1981 . Before being overruled by the Civil Rights Act of 1991, the Supreme Court construed § 1981 as not reaching conduct that occurs after the making or enforcing of a contract: "The right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights." Patterson v. McLean Credit Union, 491 U.S. 164, 177-79 , 109 S.Ct. 2363, 2372-74 , 105 L.Ed.2d 132 (1989). Logically, if § 1981 does not extend past the making or enforcing of a contract, then § 1982 should not extend beyond the acts of inheriting, purchasing, leasing, selling, holding, or conveying property.
. 18 U.S.C.A. § 247 (West Supp.199-5) punishes a person who "intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so” if the damage exceeds $10,000, or who "intentionally obstructs, by force or threat of force, any person in the enjoyment of that person’s free exercise of religious beliefs, or attempts to do so...." In 1994, Congress amended this statute to enhance the punishment for violations that included the “use, attempted use, or threatened use of a dangerous weapon....” Id.
. The Maxwell court held that under the particular circumstances of that case, even though the' warrant was constitutionally deficient, the evidence would not be suppressed because the affidavit supplying the particulars of the suspected criminal activity was attached to — although not explicitly incorporated into — -the warrant, and the agent who had supplied that affidavit oversaw the execution of the warrant. Maxwell, 920 F.2d at 1034 .
. It is true that the 1972 amendments to Fed. R.Crim.P. 41 removed the requirement that the warrant itself state the grounds for the warrant's issuance because it was "unnecessary paper work.” Fed.R.Crim.P. 41 1972 advisory committee’s note. However, the committee expressly noted that "[a] person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued.” Id.
. While the court in Moore did hold that the express incorporation requirement had been satisfied despite the lack of express words of incorporation in the warrant, the case involved a warrant that had been issued pursuant to a Washington,- D.C. statute requiring judges to attach all supporting affidavits to the warrant. Moore, 461 F.2d at 1239 . Furthermore, it was undisputed that the affidavits were in fact attached to the warrant in that case. Id.
. For example, the D.C. Circuit has retreated somewhat from the rules laid down in Maxwell . In United States v. Dale, 991 F.2d 819 (D.C.Cir.), cert. denied, - U.S. -, 114 S.Ct. 286 , 126 L.Ed.2d 236 (1993), the court held that the warrant, which undeniably incorporated the affidavit, was sufficient to satisfy the requirements of the Fourth Amendment even though it was not entirely clear from the record that the affidavit was present at the search. Id. at 846-48 . The court pointed out that the warrant and its attachments listed a variety of documents to be seized, that the documents were "believed to contain specific information regarding the false statements and claims made by [defendant],” and that this was a criminal tax case where specificity is more difficult because “evidence of the crimes can be found in almost every type of business document conceivable.” Id. at 847-48 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487905. Public record. Not legal advice.