Appendix — Norton v. United States
Supreme Court brief1989
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OCTOBER TERM, 1988
JAMES F. NORTON, et al.,
Petitioners,
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO THE PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
ARNOLD KANTER
DENNIS P. BIRKE
ALTHEIMER & GRAY
Suite 4000
10 South Wacker Drive
Chicago, Illinois 60606
(312) 715-4000
Attorneys for Petitioner
James Pinckard
THOMAS F. FoORAN
JACK CARRIGLIO
FORAN, WISS & SCHULTZ
Suite 3000
30 North LaSalle Street
Chicago, Illinois 60602
(312) 368-8330
Attorneys for Petitioner
Paul A. DiFranco
THomas D. DECKER
RICHARD H. MCLEESE
THOMAS D. DECKER
& ASSOCIATES, LTD.
Suite 1527
135 South LaSalle Street
Chicago, Illinois 60603
(312) 263-4180
Attorneys for Petitioner
James F. Norton
SAMUEL J. BETAR *
PHILLIP J. ZIsOOoK
ALTHEIMER & GRAY
Suite 4000
10 South Wacker Drive
Chicago, Illinois 60606
(312) 715-4000
Attorneys for Petitioner
Paul A. Fosco
* Counsel of Record
Midwest Law Printing Co., Chicago 60611, (312) 321-0220
Supreme Cont US,
_—
INDEX TO APPENDICES
APP.
PAGE
1. Opinion of the Court of Appeals ......... 1
2. Order and Findings of the District Court
Oe INES eats ose i eek ee eke bs eee 23
3. Order and Findings of the District Court
ee rere ee 26
4. Order of the Court of Appeals Staying
| Rae seca ize et ye ver eh o Ree een nr en eee 34
5. Opinion of the Court of Appeals
ENED 55 cu Waa eae keeee okay a seek aes 36
6. Judgment of the District Court .......... 45
7. Search Warrant (Consultants &
PN SED go ke ore eas wake eke 53
8. Search Warrant (Pinckard and
Pe RE Ce te rn i eed he. 55
9. Jsury instruction No. Se ick isi acs 57
10. Juror Letter to the District Judge ....... 58
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
JAMES F. NORTON, et al.,
Petitioners,
V.
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO THE PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT
App. 1
APPENDIX 1
(U.S. v. Norton, 867 F.2d 1354 (11th Cir. 1989)]
UNITED STATES of America,
Plaintiff-Appellee,
v.
James NORTON, Defendant-Appellant.
UNITED STATES of America,
Plaintiff-Appeilee,
v.
Paul FOSCO, James Pinckard,
Paul A. Di Franco, James Norton,
Defendants-Appellants.
Nos. 87-5425, 87-5648.
United States Court of Appeals
Eleventh Circuit.
March 16, 1989.
* * * #K *
Appeals from the United States District Court for the
Southern District of Florida.
Before RONEY, Chief Judge, HATCHETT, Circuit Judge,
and HENDERSON, Senior Circuit Judge.
HENDERSON, Senior Circuit Judge:
Paul Fosco, Paul DiFranco, James Norton and James
Pinckard were convicted in the United States District
Court for the Southern District of Florida of conspiring to
participate in racketeering activity involving the unlawful
payment and receipt of money from employee welfare bene-
fit plans in violation of 18 U.S.C. §§ 1954 and 1962(d). The
App. 2
charged enterprise consisted of a building and construc-
tion workers’ union (‘‘the Laborers’ Union’’), its affiliated
local unions in Miami and Chicago, and various employee
benefit plans including the ‘Chicago Trust Fund”’ and the
“Southeast Florida Trust Fund.”’
The kickback scheme originated in 1970 when the Chi-
cago Trust Fund announced its intention to institute a
dental care plan for union members. A corporation, Con-
sultants & Administrators, Inc. (“C & A’’), was formed to
provide these services. Co-defendants Angelo Fosco, who
was the father of Paul Fosco, and James Caporale exerted
their influence as union representatives to insure that
C&A obtained the contract in exchange for payments
made to them through the corporation. James Norton was
president of C & A, while Paul DiFranco, a dentist, and
Paul Fosco, who purportedly handled sales and public rela-
tions, were named the corporation’s vice presidents. The
kickbacks were generated by inflating the appellants’
salaries. The excess cash would then be returned to Daniel
Milano, Sr., another C & A owner, who in turn paid the
money to Angelo Fosco and Caporale.
In 1972 the operation expanded into Florida when C & A
submitted its bid for a similar dental services contract for
the benefit of Florida Laborers’ Union members through a
corporation called Dental Vision Care Centers (“DVCC’’).
Again, it was awarded the contract in exchange for agree-
ing to pay the Florida union and Trust Fund representa-
tives a percentage of the premiums paid by the benefit
fund under the contract. Pursuant to its agreement, DVCC
made regular payoffs from 1973 to 1977 to a number of
conspirator-controlled companies.
James Pinckard entered the picture in 1974 when the
Chicago dental services contract was amended to include
vision services and dental services for union members’ de-
pendents. Codefendant Alfred Pilotto, a Chicago Trust
Fund representative, ensured that C & A would receive
this lucrative “family contract” in return for a kickback
consisting of 10% of C & A’s increased premiums. Pay-
App. 3
ments were to be funneled through a corporate arrange-
ment similar to that employed in the Florida operation.
Pilotto’s son-in-law, Pinckard, acted as a conduit for the
illegal payments through a corporation, Pinckard & Asso-
ciates (“P & A’’), ostensibly created to verify patients’
eligibility for coverage under the contract.
Following a federal investigation of suspected labor rack-
eteering activities involving these corporations, federal
agents obtained search warrants authorizing the search
of both C & A’s and P & A’s administrative offices. Short-
ly after their indictment, the appellants filed a motion to
suppress all materials seized during the search. The dis-
trict court ordered the corporate records suppressed be-
cause it found that the warrants were “unconstitutionally
general.’’ The government then filed an interlocutory ap-
peal. This court vacated and remanded to the district
court to determine whether the facts supported the ap-
plication of the “good faith’ exception to the exclusionary
rule. See United States v. Accardo, 749 F.2d 1477 (11th
Cir.), cert. denied sub nom. Pinckard v. United States,
474 U.S. 949, 106 S.Ct. 314, 88 L.Ed.2d 295 (1985). After
an evidentiary hearing, the district court denied the appel-
lants’ motion to suppress on the grounds that the law en-
forcement agents reasonably relied in good faith on the
warrants. The appellants eventually were convicted by a
jury on April 27, 1987.2
Norton urges reversal of his conviction and dismissal
of the indictment on the grounds that the government
failed to present sufficient evidence before the grand jury
to support the indictment. This argument is foreclosed,
however, by the decision in Costello v. United States, 350
1 Sixteen persons were indicted by the grand jury. The cases of
the appellants were severed for trial from that of their codefen-
dants. Of the remaining defendants, all were convicted except
Angelo Fosco, Terrence O’Sullivan and Anthony Accardo, who
were acquitted, and Santo Trafficante, who was later dismissed
as a defendant.
App. 4
U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), in which the
United States Supreme Court held that inadequate or in-
competent evidence before a grand jury could not be a
basis for challenging an indictment where the indictment
resulted in an otherwise valid conviction. 350 U.S. at
363-64, 76 S.Ct. at 409, 100 L.Ed.2d at 402-03. This court
consistently has followed the Costello rule to preclude ap-
pellate review of sufficiency of the evidence before the
grand jury. See, e.g., United States v. DiBernardo, 775
F.2d 1470, 1478 (11th Cir. 1985), cert. denied, 476 U.S.
1105, 106 S.Ct. 1948, 90 L.Ed.2d 357 (1986); United States
v. Cruz, 478 F.2d 408, 412 (5th Cir.), cert. denied sub nom.
Aleman v. United States, 414 U.S. 910, 94 S.Ct. 259, 38
L.Ed.2d 148 (1973); Cohen v. United States, 436 F.2d 586,
587 (5th Cir.), cert. denied, 403 U.S. 908, 91 S.Ct. 2215,
29 L.Ed.2d 684 (1971). We therefore decline to review it
here.
The appellants also challenge the sufficiency of the evi-
dence on two other grounds. First, Pinckard contends that
the government’s case against him failed because he was
not a member of any of the four ciasses of person sub-
ject to the statute.2 Contrary to this assertion, Pinckard’s
2 The four categories enumerated in 18 U.S.C. § 1954 are:
(1) An administrator, officer, trustee, custodian, counsel,
agent, or employee of any welfare benefit plan or employee
pension benefit plan; or
(2) an officer, counsel, agent, or employee or an employer
or any employer any of whose employees are covered by such
plan; or
(3) an officer, counsel, agent, or employee of an employee
organization any of whose members are covered by such plan;
or
(4) a person who, or an officer, counsel, agent, or employee
of an organization which provides benefit plan services to such
plan [who} receives or agrees to receive or solicits any fee,
kickback, commission, gift, loan, money or thing of value be-
cause of or with intent to be influenced with respect to, any
of his actions, decisions, or other duties relating to any ques-
tion or matter concerning such plan...
App. 5
involvement fell within the fourth classification contained
in the statute, which includes any ‘“‘person who, or an of-
ficer, counsel, agent or employee of an organization which
provides benefit plan services” to an employee pension
benefit plan. 18 U.S.C. § 1954(4). The statute does not re-
quire direct employment by the benefit plan. See United
States v. Russo, 442 F.2d 498, 502 (2d Cir. 1971), cert.
denied, 404 U.S. 1023, 92 S.Ct. 669, 830 L.Ed.2d 673 (1972).
Pinckard provided such services to the plan through C & A,
which contracted directly with the Chicago Trust Fund.
Since P & A was created primarily to serve as a channel
for kickbacks to Alfred Pilotto, who had obtained the con-
tract for C & A, we find his connection to C & A suffi-
cient to sustain his guilt for an offense under Section 1954.
That Pinckard “knowingly joined the group which agreed
to make” payments to Pilotto, a benefit fund trustee, is
more than sufficient to uphold his conviction. See United
States v. Provenzano, 615 F.2d 37, 44 (2d Cir.) (emphasis
in original), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64
L.Ed.2d 810 (1980).
Moreover, 18 U.S.C. § 1954 also includes “‘any person
who directly or indirectly gives or offers, or promises to
give or offer, any fee, kickback, commission, gift, loan,
money or thing of value prohibited by this section.” (em-
phasis supplied). Given the ample evidence that Pinckard
was not only aware of the others’ participation in the
scheme, but also that he agreed to forward the payments
to Pilotto, his conviction under Section 1954 is supported
on either of these grounds.
Pinckard was not charged with a Section 1954 violation
but with conspiracy to conduct the affairs of an enter-
prise through a pattern of “racketeering activity” in vio-
lation of 18 U.S.C. § 1962(d). Even if he could not be found
guilty as a principal under Section 1954, “(t]he govern-
ment need only prove that [the] defendant conspired to
commit the substantive RICO offense and was aware that
others had done likewise” in order to support a RICO
conspiracy charge. United States v. Pepe, 747 F.2d 632,
App. 6
660 (11th Cir. 1984). Thus, Pinckard’s related argument
that the indictment must fail because it did not allege that
he was a member of the class of persons amenable to sec-
tion 1954 is without merit.
18 U.S.C. §§ 1962(c) and (d) make it a crime to conspire
to participate in the affairs of “any enterprise engaged
in, or the activities of which affect, interstate or foreign
commerce . . . through a pattern of racketeering activ-
ity.”’ The appellants’ second attack on the sufficiency of
the evidence centers around the government’s alleged fail-
ure to establish the requisite nexus between the enter-
prise and interstate commerce.
The charged enterprise was the Laborers’ Union, its
subordinate local unions, and its affiliated employee bene-
fit plans. It is well established that the enterprise, and
not the individual charged with violating the statute, must
engage in or affect interstate commerce. See, e.g., United
_ States v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985), cert.
denied sub nom. Callanan v. United States, 475 U.S.
1098, 106 S.ct. 1499, 89 L.Ed.2d 899 (1986); United States
v. Conn, 769 F.2d 420, 423-24 (7th Cir. 1985); United
States v. Dickens, 695 F.2d 765, 781 (8d Cir. 1982), cert.
denied, 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359
(1983); United States v. Groff, 643 F.2d 396, 400 (6th Cir.),
cert. denied sub nom. Turbyfill v. United States, 454 U.S.
828, 102 S.Ct. 121, 70 L.Ed.2d 103 (1981); United States
v. Rone, 598 F.2d 564, 573 (9th Cir. 1979), cert. denied
sub nom. Little v. United States, 445 U.S. 946, 100 S.Ct.
1345, 63 L.Ed.2d 780 (1980). Although a criminal under-
taking often is involved, in many cases the government
charges an enterprise consisting of a legitimate organiza-
tion, the activities of which are conducted through a pat-
tern of racketeering. See, e.g., United States v. Stratton,
649 F.2d 1066, 1075 n. 12 (5th Cir. 1981). The Laborers’
Union and its subordinate locals in various states includ-
ing Florida and Illinois, as weil as its affiliated benefit
plans, was just such an enterprise, representing thousands
App. 7
of employees in the building and construction industries.®
Where, as here, the ‘‘very nature of the powers and duties”
conferred upon the enterprise is interstate in character,
the requisite interstate nexus is present. Cf. United States
v. Bagnariol, 665 F.2d 877, 893 (9th Cir. 1981), cert. de-
nied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982);
United States v. Altomare, 625 F.2d 5, 7-8 (4th Cir. 1980).
The requirement also is met if the enterprise affects inter-
state commerce, even though it is the racketeering activ-
ities that influence commerce. United States v. Conn, 769
F.2d at 424; accord United States v. Qaoud, 777 F.2d at
1116; United States v. Dickens, 695 F.2d at 781. Here,
various officials and representatives of the Laborers’
Union locals and their benefit funds traveled between
Florida and Illinois to discuss conspiratorial matters, in-
cluding payoffs from C & A pursuant to the conspiracy.
Accordingly, there was more than sufficient evidence of
an interstate commerce connection to support the appel-
lants’ convictions.
As' stated earlier, the district court, on a remand from
this court, conducted an evidentiary hearing on the good
faith exception to the exclusionary rule established in
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82
L.Ed.2d 677 (1984) and Massachusetts v. Sheppard, 468
U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). This re-
mand and subsequent hearing grew out of the govern-
ment’s interlocutory appeal of the district court’s grant
of a motion to suppress evidence seized pursuant to cer-
tain search warrants. The warrants in question called for
the search and seizure of “all corporate records . . . which
are evidence and instrumentalities of the offense set forth
3 In Donovan v. S&L Development Co., 647 F.2d 14, 18 (9th
Cir. 1981), the court noted that “‘any construction work, regardless
of the size or duration of the project, is likely to have an effect
on interstate commerce.” Also, Congress has specifically found that
employee benefit plans have become “increasingly interstate” in
their “operational scope and economic impact.” See 29 U.S.C.
§ 1001(a).
App. 8
in Section 1954 of Title 18 United States Code.” See
United States v. Accardo, 749 F.2d 1477 (11th Cir.), cert.
denied sub nom. Pinckard v. United States, 474 U.S. 949,
106 S.Ct. 314, 88 L.Ed.2d 295 (1985). In Accardo, we de-
cided as a matter of law that the good faith exception
applied, specifically stating that the warrants’ authoriza-
tion to seize “all corporate records” did not transgress
the limitation on the good faith exception involving war-
rants “ ‘so facially deficient—7.e., in failing to particularize
the place to be searched or the things to be seized—that
the executing officers cannot reasonably presume it to be
valid.’ ”’ Accardo, 749 F.2d at 1481 (quoting Leon, 104
S.Ct. at 3421). We remanded the case to the district court,
however, to afford the parties a hearing on the good faith
issue.
On remand the district court found that the law enforce-
ment officers justifiably relied in good faith on the valid-
ity of the warrants, and accordingly denied appellants’ mo-
tion to suppress evidence pursuant to those warrants. Al-
though this court has de novo review over the legal issue
of whether the officers’ reliance on the warrants was ob-
jectively reasonable, “the underlying facts upon which that
determination is based are binding on appeal unless clear-
ly erroneous.” United States v. Maggitt, 778 F.2d 1029,
1035 (5th Cir. 1985), cert. denied, 476 U.S. 1184, 106 S.Ct.
2920, 91 L.Ed.2d 548 (1986); accord Accardo, 749 F.2d at
1481.
More than adequate support exists for the district
court’s determination that the agents acted in justifiable
reliance on the warrants. As we noted in Accardo, the
agents here “took every step that could reasonably be
expected of them,” including the submission of an affidavit
detailing the pervasive fraud perpetuated by C & A and
P & A, which was reviewed and approved by several pros-
ecutors before its presentation to a magistrate. Cf Shep-
pard, 468 U.S. at 989, 104 S.Ct. at 3428, 82 L.Ed.2d at
744. At the hearing on remand, the FBI Agent who ap-
plied for both warrants testified that he believed he
needed all of C & A’s and P & A’s corporate records,
especially financial and employment records, to verify the
App. 9
kickback scheme. Because this investigation required the
authorities to piece together a “‘paper puzzle’”’ given the
permeative character of the fraud involved, we find that
the agent’s belief was objectively reasonable. ‘The reason-
ableness of the search depends upon the complexity of
the crime being investigated and the difficulty involved
in determining whether certain documents evidence
fraud.” United States v. Sawyer, 799 F.2d at 1509. The
district court’s denial of appellant’s motion to suppress
was therefore not error.
Our review of the record reveals no reversible grounds
for the appellants’ various challenges to the district court’s
admission of certain evidence at trial. We reject Fosco’s
claim that the district court’s admission of purported
“other crimes” evidence deprived him of a fair trial.
Daniel Milano, Jr. (‘‘Milano, Jr.’’), the prosecution’s key
witness, testified that both he and Fosco received a month-
ly raise from C & A in 1975. He further stated that he
discussed these increases with his father, Daniel Milano,
Sr. (Milano, Sr.’’), and Fosco, during which Milano, Sr.
instructed his son to return a portion of the raise to him,
and similarly directed Fosco to pay his increased supple-
ment to his father, Angelo Fosco. Fosco urges that the
testimony concerning Milano, Jr.’s excess payment to Mil-
ano, Sr. was unrelated to Fosco’s alleged involvement in
the conspiracy and unfairly created the inference that he,
too, was involved in multiple kickback schemes. Thus, he
argues, this evidence allowed the jury to base his con-
viction on other crimes or extrinsi acts for which he was
not charged. This testimony, however, is completely out-
side the reach of Rule 404(b) of the Federal Rules of Evi-
dence.* Rule 404(b) deals only with acts committed by the
4 Fed.R.Evid. 404(b) provides:
Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of
a person in order to show that he acted in conformity there-
with. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
App. 10
defendant himself, not with crimes committed by other
members of the conspiracy. See United States v. Meester,
762 F.2d 867, 877 (11th Cir.), cert. denied sub nom.
Sawyer v. United States, 474 U.S. 1024, 106 S.Ct. 579,
88 L.Ed.2d 562 (1985); United States v. Bates, 600 F.2d
505, 509 (5th Cir. 1979). The purpose of the rule is to pre-
vent the jury from considering evidence that the defen-
dant has, at other times, committed bad acts to convict
him of the charged offense.> United States v. Aleman, 592
F.2d 881, 885 (5th Cir. 1979). We further note that an
act cannot be characterized as extrinsic and therefore sub-
ject to Rule 404(b) when ‘“‘the evidence concerning that
act and the evidence used to prove the crime charged are
inextricably intertwined.”’ Jd. Where, as here, the evi-
dence concerning Milano, Jr.’s illegal payment was “inter-
twined with the evidence of the ongoing conspiracies. . .
[it] cannot be labeled ‘extrinsic’.”” United States v. Meester,
762 F.2d at 877 (citing United States v. Aleman, supra).
Pinckard makes two complaints about the admissibility
of evidence against him. First, he contends that the gov-
ernment’s introduction of checks made payable to him and
totalling over $334,000.00 constituted an improper attempt
to forge a link between his financial status and his guilt.
He insists that the check evidence was irrelevant under
5 Fosco is precluded from arguing that Milano, Jr.’s testimony
with respect to Fosco’s complicity falls within the parameters of
Rule 404(b). The indictment specifically alleged that during the
relevant time period ‘defendant PAUL FOSCO had conversations
with and received payments from employees of Consultants and
Administrators as illegal kickbacks for his father, defendant ANGELO
FOSCO.” (emphasis added). Milano, Jr.’s testimony concerning
Fosco cannot be termed evidence of acts extrinsic to those for
which he was indicted. See United States v. Finestone, 816 F.2d
583, 586-87 (11th Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 338,
98 L.Ed.2d 365 (1987).
App. 11
Fed.R.Evid. 402, and even if minimally material, was
highly prejudicial and thus inadmissible under Rule 493.7
The district court possesses broad discretion to admit
evidence if it has any tendency to prove or disprove a
fact in issue. United States v. Finestone, 816 F.2d 583,
585 (11th Cir.), cert. denied, ___ U.S. ___., 108 S.Ct. 338,
98 L.Ed.2d 365 (1987); United States v. King, 713 F.2d
627, 631 (11th Cir. 1983), cert. denied sub nom. McGlock-
lin v. United States, 466 U.S. 942, 104 S.Ct. 1924, 80
L.Ed.2d 470 (1984). Conversely, we are mindful that the
court’s discretion to exclude evidence under Rule 403 is
narrowly circumscribed. ‘Rule 403 is an extraordinary
remedy which should be used only sparingly since it per-
mits the trial court to exclude concededly probative evi-
dence.”’ United States v. Betancourt, 734 F.2d 750, 757
(11th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 574, 83
L.Ed.2d 514 (1984); accord United States v. Plotke, 725
F.2d 1303, 1308 (11th Cir.), cert. denied, 469 U.S. 848, 105
S.Ct. 151.83 L.Ed.2d 89 (1984). The balance under the
Rule, therefore, should be struck in favor of admissibil-
ity. Finestone, 816 F.2d at 585. The district court is
vested with considerable discretion to admit such pro-
bative evidence. Its decision will not form a basis for re-
versible error “unless the defendant can demonstrate
abuse of that discretion.”’ United States v. Mitchell, 666
6 Fed.R.Evid. 402 states:
All relevant evidence is admissible, except as otherwise pro-
vided by the Constitution of the United States, by Act of Con-
gress, by these rules, or by other rules prescribed by the Su-
preme Court pursuant to statutory authority. Evidence which
is not relevant is not admissible.
7 Fed.R.Evid. 403 provides that
{aJlthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prej-
udice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
App. 12
F.2d 1385, 1390 (11th Cir.), cert. denied, 457 U.S. 1124,
102 S.Ct. 2948, 73 L.Ed.2d 1340 (1982).
Admission of the disputed checks was relevant to estab-
lish the conspiracy. It showed that funds were to be re-
turned to Pilotto, Pinckard’s father-in-law; that Pilotto re-
ceived a benefit or “thing of value,” and that Pinckard
was compensated for his role in the charged offense. Al-
though the government produced no direct evidence that
Pinckard transferred any of the check proceeds to Pilotto,
the jury, buttressed by Milano, Jr.’s testimony concern-
ing Pinckard’s participation in the scheme, certainly was
entitled to infer from the evidence that the checks made
to Pinckard were intended to generate kickbacks to Pilot-
to. Cf. United States v. Parness, 503 F.2d 430, 438 (2d
Cir. 1974), cert. denied, 419 U.S. 1105, 95 S.Ct. 775, 42
L.Ed.2d 801 (1975). Neither does this evidence merit ex-
clusion under Rule 403. While it is true that “alll evi-
dence which tends to establish the guilt of a defendant
is, in one sense, prejudicial to that defendant, .'. . that
does not mean that such evidence should be excluded. It
is only when the probative value of evidence is ‘substan-
tially outweighed by the danger of unfair prejudice’. . .
that relevant evidence should be excluded.” United States
v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982) (emphasis
in original), accord United States v. Betancourt, 734 F.2d
at 757; United States v. King, 713 F.2d at 631. We are
not persuaded by Pinckard’s attempt to compare his case
with United States v. Nill, 518 F.2d 793 (5th Cir. 1975).
In Nill, the prosecutor had cross-examined the defendant
as to his ambitions to become a millionaire. The former
Fifth Circuit Court of Appeals reversed the defendant’s
conviction on the grounds that the cross examination “was
allowed to generate into a personal attack calculated to
appeal to bias on the part of the jury.” 518 F.2d at 802.
No such circumstances are present here. Moreover, the
court in Nill noted that evidence of the appellant’s salary
would be relevant to show he had fraudulently concealed
certain financial transactions. Similarly, the checks in this
case were properly admitted to establish the offense.
App. 13
Pinckard next maintains that the district court erred
in admitting a summary chart and related testimony on
the grounds that they did not conform with the evidence
presented at the trial. There was no error.
We recognize the caution with which these summaries
are to be utilized, given the possibilities for abuse. See
Gordon v. United States, 438 F.2d 858, 876 (5th Cir.), cert.
denied, 404 U.S. 828, 92 S.Ct. 139, 30 L.Ed.2d 56 (1971);
Myers v. United States, 356 F.2d 469, 470 (5th Cir.), cert.
denied, 384 U.S. 952, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966).
The decision to allow the use of such illustrative charts,
however, is a matter well within the trial court’s discre-
tion and is subject to reversal only if there has been an
abuse of that discretion. United States v. Diez, 515 F.2d
892, 906 (5th Cir. 1975), cert. denied, 432 U.S. 1052, 96
S.Ct. 780, 46 L.Ed.2d 641 (1976); Baines v. United States,
426 F.2d 833, 840 (5th Cir. 1970). Any issue as to the pro-
priety of introducing summaries during a trial was fore-
closed by the enactment of Fed.R.Evid. 1006 in 1975.°
United States v. Smyth, 556 F.2d 1179, 1183 (5th Cir.),
cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135
(1977).
The government’s chart and accompanying testimony il-
lustrated that payments to the conduit companies repre-
sented approximately 15% of the premiums paid by the
Southeast Florida Trust Fund to DVCC and two of DVCC’s
affiliated doctors, Graham and Catarello. Pinckard objects
to the chart, arguing that it erroneously assumed that
payments to Graham and Catarello were part of the 15%
calculation. Without their inclusion, he asserts, the per-
8 Rule 1006 provides:
The contents of voluminous writings, recordings, or photo-
graphs which cannot conveniently be examined in court may
be presented in the form of a chart, summary, or calculation.
The originals, or duplicates, shall be made available for exam-
ination or copying, or both, by other parties at reasonable time
and place. The court may order that they be produced in court.
App. 14
centages would not corroborate the testimony provided’
by Daniel Milano, Jr., upon which the government exten-
sively relied. The chart’s assumptions, however, are amply
supported by the evidence presented to the jury. The wit-
ness who prepared the summary chart explained that pay-
ments made to these two doctors were, in effect, pay-
ments to DVCC since they provided health care services
as independent contractors for DVCC pursuant to DVCC’s
contract with the Florida Trust Fund. “[T]Jhe essential re-
quirement is not that the charts be free from reliance on
any assumptions, but rather that these assumptions be
supported by evidence in the record.”’ United States v.
Diez, 515 F.2d at 905; accord United States v. Jennings,
724 F.2d 436, 442 (5th Cir.), cert. denied, 467 U.S. 1227,
104 S.Ct. 2682, 81 L.Ed.2d 877 (1984). Furthermore, where,
as here, the defense conducted a thorough cross examina-
tion of the witness concerning the disputed matters, and
also had the opportunity to present its own version of
those matters, the likelihood of any error in admitting
summary evidence diminishes. See id. at 442; United
States v. Means, 695 F.2d 811, 817 (5th Cir. 1983). Coupled
with the trial court’s accompanying instruction to the jury
that the summary chart was not evidence and therefore
should be accorded its due weight, we find that the court
did not abuse its discretion in admitting it. See United
States v. Smyth, 556 F.2d at 1185; accord United States
v. Dez, 515 F.2d at 905.
The district cour: also did not err in admitting a memo-
randum which detailed a telephone conversation between
Robert Paul and Wendy! Link, two former officers of the
Segal Company, a consulting firm that had rendered ser-
vices to the Laborers’ Union. The document, which was
prepared by Paul and admitted into evidence through
Link’s testimony, reflected Link’s concerns over Norton’s
suspected involvement in the dental plan. Norton contends
that the memorandum was inadmissible under the busi-
ness records exception to the rule against hearsay because
Link had no personal knowledge of its contents, that there
was insufficient evidence to establish that the memoran-
App. 15
dum was created as part of a regular business practice
or that it was made at or near the time of the conversa-
tion, and that it was patently untrustworthy.® Our exam-
ination of the record refutes this. There was more than
ample evidence to warrant admission of the memorandum
under Rule 803(6).
Neither are we persuaded by Norton’s argument that
admission of the memorandum violated his right to con-
front witnesses against him. The challenged memorandum
was, as we have stated, sufficiently trustworthy and re-
liable. Also, defense counsel had the opportunity to cross
examine the custodian, Link, respecting its accuracy. See
United States v. Peden, 556 F.2d 278, 281 (5th Cir.), cert.
denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977).
The Supreme Court recently observed in a related con-
text that the prosecution is not required to demonstrate
either unavailability of the declarant or an independent
indicia of reliability when the evidence falls within a hear-
say exception as “firmly rooted” as the co-conspirator ex-
ception to the hearsay rule. Bourjaily v. United States,
483 U.S. 171, ___, 107 S.Ct. 2775, 2782-83, 97 L.Ed.2d
144, 157 (1987). By analogy, we find the business records
exception to the hearsay rule to be “firmly enough rooted
in our jurisprudence” to satisfy the requirements of the
Confrontation Clause where, as here, the document was
properly admitted under the exception. Jd. “Properly ad-
ministered the business and public records exceptions
9 Fed.R.Evid. 803(6) provides in pertinent part:
A memorandum... of acts, events, conditions, opinions, or
diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, [is not excluded by
the hearsay rule, even though the declarant is available as a
witness] if kept in the course of a regularly conducted busi-
ness activity, and if it was the regular practice of that busi-
ness activity to make the memorandum . . . as shown by the
testimony of the custodian or other qualified witness, unless
the source of information or the method of circumstances of
preparation indicate lack of trustworthiness.
App. 16
would seem to be among the safest of the hearsay excep-
tions.’’ Ohio v. Roberts, 448 U.S. 56, 66 n. 8, 100 S.Ct.
2531, 2539 n. 8, 65 L.Ed.2d 597, 608 n. 8 (1980).
Nor do we find that the admission of certain documen-
tary evidence, consisting of various contracts, letters, in-
voices, checks, deposit slips, vouchers, and bank state-
ments constituted an abuse of discretion. There is more
than enough evidence in the record to establish a proper
foundation for the challenged records and to support their
admission under Rule 803(6).
The appellants charge that the prosecutor’s comments
in summation amounted to a direct reference to their fail-
ure to testify, thereby depriving them of a fair trial, is
likewise without merit. Although a prosecutor’s direct
reference to a defendant’s failure to testify clearly vio-
lates the defendant’s fifth amendment right against self
incrimination, entitling him to a new trial, see Griffin v.
California, 380 U.S. 609, 612-14, 85 S.Ct. 1229, 1232-33,
14 L.Ed.2d 106, 108 (1965); accord Solomon v. Kemp, 735
F.2d 395, 401 (11th Cir. 1984), cert. denied, 469 U.S. 1181,
105 S.Ct. 940, 83 L.Ed.2d 952 (1985), an indirect reference
to such a failure is not reversible error per se. Rather,
the court must assess the impact of the statement in
terms of the context in which it was made. Jd. A com-
ment is deemed to refer to a defendant’s silence if either
(1) it was the prosecutor’s manifest intention to refer to
the defendant’s silence or (2) the remark was of such a
character that the jury would “naturally and necessari-
ly” take it to be a comment on the defendant’s silence.
United States v. Rosenthal, 793 F.2d 1214, 1243 (11th Cir.
1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1377, 94, L.Ed.
2d 692 (1987).
Here, the prosecutor did not directly refer to the defen-
dants’ decision not to testify, but to defense counsel’s
App. 17
failure to rebut the government’s evidence.!® This court
repeatedly has held that a defendant’s fifth amendment
privilege is not infringed by a comment on the failure of
the defense, as opposed to the defendant, to counter or
explain the testimony presented or evidence introduced.
See United States v. Davidson, 768 F.2d 1266, 1272 (11th
Cir. 1985); United States v. Bright, 630 F.2d 804, 825 (5th
Cir. 1980); United States v. Dearden, 546 F.2d 622, 625
(5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54
L.Ed.2d 188 (1977); United States v. Hill, 508 F.2d 345,
347 (5th Cir.), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633,
45 L.Ed.2d 672 (1975). In the context of this case, we do
not believe the prosecutor’s statement to be such that the
10 The prosecutor stated in his closing argument:
“If you saw all this evidence, you heard everything except
Nancy Moreland, Sandra Varco and Danny Milano, you would
probably be almost convinced these defendants had been in
a scheme to pay bribes. You would be waiting to hear the
explanation of how it was not so, and when the people who
got up on the stand, who knew about it testified, they said,
oh, yes, it was so. Danny Milano, Nancy Milano [sic] and San-
dra Varco; what they said makes sense. Is any other explana-
tion reasonable? Not that you heard one, but is any other ex-
planation reasonable? I have been going for a little over two
hours and I will stop now and I will wait to hear that reason-
able explanation. I will ask you to listen to it very carefully.
I will invite defense counsel to provide you with that expla-
nation.”
During the rebuttal portion of his closing argument, the prosecu-
tor then repeated the lack of any reasonable explanation and his
exhortation to defense counsel to provide one:
“I told you before I sat down a few minutes ago that if there
was another explanation for this circumstantial evidence, that
I certainly was going to invite defense counsel to get up and
tell you what it was. I have not heard one explanation. Not
one. Because there is not any other explanation. If there is
no other explanation it means very simply where [sic] Danny
Milano and Sandra Varco and Nancy Moreland have told you
here under oath is in fact the truth. If it is the truth, then
you have to return verdicts of guilty as to these defendants.”
App. 18
jury would “naturally and necessarily’? construe it as a
comment on the defendants’ silence. We more reasonably
view it as a permissible ‘“‘comment on logical inferences
from all of the evidence rather than an argument requir-
ing a negative inference from the defendant’s failure to
testify.”” United States v. Rutkowski, 814 F.2d 594, 597
(11th Cir. 1987).
During the jury deliberations, one of the jurors sent a
note to the judge requesting that he be excused because
the other jurors wanted to convict the defendants while
he entertained some doubt as to their guilt. He also in-
quired whether he was compelled to vote with the major-
ity “even under duress.”’ The defendants made a motion
for a mistrial which was denied by the court. The court
informed the juror that he could not be excused and fur-
ther advised him that he was not compelled to vote un-
der duress. The trial judge then gave further instructions
to the jury. The jury resumed its deliberations and re-
turned guilty verdicts against all the defendants some
four hours later. This incident provides the inspiration for
the final assignment of error by raising the question of
whether the circumstances surrounding the jury’s deliber-
ations resulted in coerced verdicts. The appellants argue
that the juror’s note, which revealed the jury’s numerical
division as to guilt and acquittal as well as that juror’s
doubts about the defendants’ guilt, followed by the judge’s
refusal to inquire into the nature of the “duress” allegedly
experienced by the juror, created confusion among the
jury.!! They also argue that the trial judge’s subsequent
11 The juror’s note read as follows:
“Your Honor, in order to avoid another lengthy and expen-
sive trial, would it be possible to surrender my seat No. 8
to the No. 1 alternate juror to get a verdict in this case?
I have reasonable doubts in this case and the other eleven
jurors are voting guilty on all four defendants. My conscious
[sic] tells me otherwise and I dislike having a hung jury.
(Footnote continued on following page)
App. 19
recharge of the jury improperly urged a verdict and con-
tributed to the coercive atmosphere already created by
the juror’s note.!?
11 continued
I would appreciate your help in my behalf. Thank you kindly.
Robert J. Larson, Juror No. 8
Must I vote with the majority, even under duress, Your
Honor? Please advise.”
The court then informed the juror that he could not be replaced
and that he was not obliged to vote with the majority, “even
under duress.”
12 In recharging the jury, the trial judge gave the following in-
struction:
“Ladies and gentlemen, I do not want to emphasize one par-
ticular charge. | want you to study the entire charge, but I
am going to bring to your attention one of the charges that
is presently in the package of the charges I gave you orally
yesterday.
I invite you to study again the entire charge, any verdict
that (sic) must represent the considered judgment of each
juror. In order to return a verdict, it is necessary that each
juror agree thereto; in other words, your verdict must be
unanimous.
It is your duty as jurors to consult with one another and
to deliberate in an effort to reach agreement if you can do
so without violence to the individual judgment.
Some of you must decide the case for yourselves, but only
after an impartial consideration of the evidence ir the case
with your fellow jurors.
In the course of your deliberations, you should not hesitate
to remember about whether in your own views, [to] change
your opinion if convinced it is erroneous, but do not surrender
your honest conviction as to the weight or effect of the evi-
dence solely because of the opinion of your fellow jurors or
for the mere purpose of returning a verdict.
Remember, at all times that you are not partisans. You are
judges of the facts as your sole interest is to seek the truth
from the evidence in the case.
Ladies and gentlemen, you may again retire to consider your
verdict.”
App. 20
The appellants cite Brasfield v. United States, 272 U.S.
448, 47 S.Ct. 135, 71 L.Ed. 345 (1926) and its progeny
as support for their argument. Brasfield, however, differs
from this case in several important respects. The United
States Supreme Court held in Brasfield that a trial judge’s
inquiry into the jury’s numerical division constituted grounds
for reversal. Brasfield, 272 U.S. at 450, 47 S.Ct. at 135-
36, 71 L.Ed. at 346. In the instant case, the juror offered
this information without any solicitation from the judge.
Although an inquiry by the court clearly is improper, the
former Fifth Circuit Court of Appeals has recognized that
the unsolicited disclosure of the jury’s division by a juror
is not by itself a ground for a mistrial. United States v.
Warren, 594 F.2d 1046, 1049 (5th Cir. 1979); accord Sand-
ers v. United States, 415 F.2d 621, 631-32 (5th Cir. 1969),
cert. denied, 397 U.S. 976, 90 S.Ct. 1096, 25 L.Ed.2d 271
(1970).
We are aware of a number of cases following Brasfield
in which the courts have found coercion to exist regard-
less of whether the disclosure was solicited by the judge
or voluntarily provided by a juror. In each of these cases,
" however, the trial judge’s awareness of the jury’s divi-
sion was accompanied by giving an Allen charge, in its
pure or modified form.!* See, e.g., United States v. Webb,
816 F.2d 1263 (8th Cir. 1987); United States v. Sae-Chua,
725 F.2d 530 (9th Cir. 1984); Williams v. United States,
338 F.2d 530 (D.C. Cir. 1964). Reversal may not be neces-
sary even where the trial judge undertakes the inquiry
and thereafter follows it with an Allen charge, absent a
showing that either incident or a combination of the two
was inherently coercive. See Cornell v. Iowa, 628 F.2d
1044 (8th Cir. 1980), cert. denied, 449 U.S. 1126, 101 S.
Ct. 944, 67 L.Ed.2d 112 (1981); see also Butler v. United
States, 254 F.2d 875, 876 (oth Cir. 1958) (trial judge’s in-
quiry as to numerical standing on conviction or acquittal
13° See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.
528 (1896).
App. 21
held not reversible error where it had no coercive effect
on jury and did not affect substantial rights of defendant);
accord Beale v. United States, 263 F.2d 215, 217 (5th Cir.
1959).
We disagree with appellants’ assertion that the instruc-
tion given to the jury by the trial judge following juror
Larson’s note was nothing less than a “watered-down
Alien charge.” Although the judge did encourage the
jurors to consult with each other and be open to the
possibility of changing their position, we do not construe
the instruction as an exhortation of the minority to re-
examine its views in deference to the majority, or to sug-
gest that the majority’s position is correct. Moreover, the
instruction did not contain several other hallmarks of an
Allen charge, namely that it would be expensive and time-
consuming to retry the case, and that no future jury
would be better suited to decide the case. In its totality
the instruction in this case cannot be said to approximate
an Allen charge or to in any other way urge a verdict.4
In addition, no other indicia of jury coercion are present
in the record. The jury deliberated some four hours after
the trial court’s supplementary instruction, a time period
not suggestive of a coercive or pressure-filled atmosphere.
We also dismiss the argument that the court’s additional
charge to the jury failed to include an instruction on rea-
sonable doubt. “{I]f the supplemental instruction admon-
ishes as here that the jurors should not ‘acquiesce’ in a
verdict or do violence to their consciences, no harm will
be found in the trial court’s failure to instruct regarding
the burden of proof.’”’ United States v. Bailey, 468 F.2d
652, 663 (5th Cir. 1972).
14 We do observe that although the Allen charge has been the
subject of heated controversy, its continuing viability has been
recognized by this court. See United States v. Rey, 811 F.2d 1453
(11th Cir.), cert. denied, ____ U.S. ___, 108 S.Ct. 103, 98 L.Ed.2d
63 (1987).
App. 22
Nor do we find error in the trial judge’s decision not
to question the juror regarding the “duress” he may have
experienced during jury deliberations. To have done so
would itself have risked reversible error, since the juror’s
note made clear that the pressure allegedly placed upon
him resulted from discussions between the jurors and not
from extraneous prejudicial information. See Fed.R.Evid.
606(b). The alleged harassment or intimidation of one juror
by another would not be competent evidence to impeach
the guilty verdict. United States v. Casamayor, 837 F.2d
1509, 1515 (11th Cir. 1988), cert. denied sub nom., Barker
v. United States, ___ U.S. ___, 109 S.Ct. 813, _____ L..
Ed.2d _____ (1989); United States v. Blackburn, 446 F.2d
1089, 1090-91 (5th Cir. 1971), cert. denied, 404 U.S. 1017,
92 S.Ct. 679, 30 L.Ed.2d 665 (1972).
For the foregoing reasons, the judgments of conviction
are
AFFIRMED.
App. 23
APPENDIX 2
[Filed February 13, 1986]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 81-230-CR-KEHOE
UNITED STATES OF AMERICA,
Plaintiff,
V.
ANTHONY ACCARDO, et al.,
Defendants.
(Defendants P. Fosco, DiFranco,
Pinckard and Norton)
ORDER ON REMAND
Pursuant to the Mandate issued by the United States
Court of Appeals for the Eleventh Circuit in United States
v. Accardo, 749 F.2d 1477 (1985) an evidentiary hearing
was held to determine whether the good-faith exception
to the Fourth Amendment exclusionary rule as enunciated
in United States v. Leon, 104 S.Ct. 3405 (1984) and
Massachusetts v. Sheppard, 104 S.Ct. 3424 (1985) is ap-
plicable to the instant case.
At the conclusion of the evidentiary hearing, the Court
finds that the parties failed to adduce any additional ma-
terial facts than those previously presented at the initial
motion to suppress hearing and summarized by the Court
in United States v. Accardo, supra at 1478-79. Moreover,
App. 24
contrary to the argument of counsel, the warrant in the
case sub judice has been held not to “transgress the
limitation on the good faith exception by the Supreme
Court as cases involving warrants ‘so facially deficient—
i.e., failing to particularize the place to be searched or
the things to be seized—that the executing officers can-
not reasonably presume it to be valid.’ 104 S.Ct. at 3422.”
U.S. v. Accardo at 1481.
Under these same facts and circumstances presented on
appeal, the Court determined that the good faith excep-
tion was applicable:
On the facts considered by the district court at the
suppression hearing, the pending appeal is within the
good faith exception articulated in Leon and Shep-
pard. The agents here ‘took every step that could
reasonably be expected of them.” Jd. As in Sheppard,
the agents submitted a detailed affidavit to a magis-
trate in order to secure the search warrants. The affi-
davit alleged a pervasive fraud that had resulted in
.the incorporation of a sham business to channel kick-
back monies to labor officials. In addition, the affi-
davit was reviewed by several attorneys in the U.S.
Attorney’s office before it was presented to a magis-
trate, who found probable cause and issued the war-
rants. It is not relevant that here, unlike in Shep-
pard, the magistrate did not make changes in the
warrant or expressly assure the agents that the war-
rant was adequate. Since the agents here did not use,
and did not know that they used, an improper form,
they had no reason to expect the magistrate to make
changes in the warrant or to especially sure (sic)
them of its adequacy. 749 F.2d at 1480-81
In light of the above holdings and the lack of any addi-
tional material facts being adduced at the hearing, the
Court finds that under all the circumstances this cause
falls within the good faith exception articulated in the
Leon and Sheppard cases.
App. 25
Accordingly, it is
ORDERED AND ADJUDGED that the Defendants’ Mo-
tion to Suppress is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida
this 13th day of February, 1986.
/s) JAMES W. KEHOE
United States District Judge
copies furnished to:
attorneys of record
Arnold Kanter, Esq
Samuel J Betar, Esq
Thomas D Decker, Esq
Thomas A Foran, Esq
John M Owens, AUSA
App. 26
APPENDIX 3
[Filed February 19, 1982]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 81-230-CR-JWK
UNITED STATES OF AMERICA,
Plaintiff,
VS.
ANTHONY ACCARDO, et al.,
Defendants.
ORDER ON MOTION TO SUPPRESS
(Defendants DiFranco, P. Foseo, Norton and Pinckard)
The defendants Paul Fosco, James F. Norton, Paul A.
Di Franco, and James Pinckard, have filed a joint mo-
tion to suppress evidence seized on October 6, 1976, from
the offices of Consultants and Administrators, Inc.,
(C & A), and the offices of Pinckard and Associates, Inc.,
(Pinckard), as well as all fruits of these searches.
The government has filed a response in opposition to
this motion, and the defendants have replied to the
response. Because of the importance of the search war-
rant issue raised, the Court has accorded the appropriate
parties full ora! argument and an opportunity to supple-
ment the memoranda already on file. After fully consider-
ing the matter and the authorities cited, the Court has
determined that the challenged warrants were constitu-
tionally flawed in that they were impermissible general
warrants.
App. 27
I.
Both of these searches were conducted pursuant to
search warrants issued by Olga Jurco, United States
Magistrate for the Northern District of Illinois, Eastern
Division. The two warrants were issued by the Magistrate
on October 5, 1976, and were based upon a single affi-
davit, sworn to and signed by James W. Wagner, a Spe-
cial Agent of the F.B.I.
It is apparently agreed by the parties that although this
is a joint motion, the defendant Pinckard has standing to
challenge only the search of Pinckard and Associates and
its fruits, and the defendants Fosco, Norton, and DiFranco
have standing only to challenge the search of C & A and
its fruits.
A careful study of the motion and memoranda and argu-
ment of counsel indicates that the first issue raised by
the defendants has sufficient merit to invalidate these war-
rants. Since the warrants are invalid on their faces, no
evidentiary hearing is necessary for this determination.
The defendants argue that the two search warrants
authorized a general, exploratory search. General warrants
are, of course, prohibited by the Fourth Amendment,
which requires a particular description of the things to
be seized. The purpose of this requirement is to prevent
‘“‘a general exploratory rummaging in a person’s belong-
ings.” Andresen v. Maryland, 427 U.S. 463, 480 (1976).
A thorough explanation of the history behind the prohibi-
tion against the use of general warrants is found in the
opinion of Stanford v. State of Texas, 379 U.S. 506 (1965)
(see also cases cited at fn. 5, p. 510) and need not be re-
peated here.
II.
The C & A warrant authorized a search for:
all corporate records of Consultants and Administra-
tors, Inc.; a black and vinyl book, approximately six
inches wide by twelve inches long, containing copies
App. 28
of contracts, correspondence, bank statements and
receipts; envelopes and United States currency which
are evidence and instrumentalities of the offense set
forth in Section 1954 of Title 18, United States Code.
The Pinckard warrant authorized a search for:
all corporate records of Pinckard and Associates, Inc.
which are evidence and instrumentalities of the of-
fense set forth in Section 1954 of Title 18, United
States Code.
The defendants claim that no probable cause was estab-
lished by the supporting affidavit to believe that all of
the corporate records were evidence and instrumentalities
of crime, and that the warrants provided no guidance to
the executing officers.
As a general principle, generic classifications in a war-
rant are acceptable only if no more precise description
of the property to be seized is possible. United States v.
Cook, 657 F.2d 730 (5th Cir. 1981), United States v.
Bright, 630 F.2d 804 (5th Cir. 1980). It would be difficult
to imagine language more generic than “all corporate
records’.
In this case the government contends that the affidavit
for search warrant established probable cause to believe
that the two corporations, C & A and Pinckard, conducted
‘‘no business which did not involve kickbacks’’, and that
all of their records were therefore subject to search. The
government asserts that it could not reasonably have been
expected to specify what records were to be seized.
The affidavit for search warrant, however, clearly states
that C & A operated clinics which provided medical, dental
and vision services to union members and their families pur-
suant to contracts with specified labor unions. Pinckard,
according to the affidavit, was paid by C & A to verify
the eligibility of persons seeking health services from
C & A under the union contracts. These are, of course,
legitimate functions. Whether the individuals involved
were giving and receiving kickbacks or not, those legiti-
App. 29
mate functions of the corporations, such as the applica-
tion for and receipt of health services by union members,
were presumably memoralized in corporate records not
subject to seizure by the government.
On the other hand, the affidavit clearly establishes prob-
able cause to search for certain kinds of corporate rec-
ords, such as cancelled receipts and checks, expense
accounts, bank statements, bids made by C & A for con-
tracts with labor unions, notes or other records of meet-
ings during which kickbacks, methods of payment, and
recipients were allegedly discussed, and the like. It
is alleged in the affidavit, for instance, that Pinckard
determined the amount of its monthly bill to C & A by
a telephone call from Pinckard to Milano. Milano stated
the monthly total of premiums paid to C & A on its Chi-
cago area contracts, and Pinckard would bill C & A for
10% of that amount. Any records memoralizing such tele-
phone calls, such as actual telephone records or ledgers
showing computations of the type described, would be sub-
ject to seizure. The specific item designated in the C & A
warrant is an example of the particularity required. There
was ample probable cause to seize a black vinyl book con-
taining copies of certain documents, although it, however
was apparently not discovered during the search. The
envelopes and the United States currency were validly
seized pursuant to the warrant. Everything else seized
during these two searches was seized as a general “cor-
porate record”.
The Courts have been zealous to safeguard the property
rights protected by the Fourth Amendment in the con-
text of general warrants. Just recently the Fifth Circuit
considered a search warrant authorizing the seizure of
pirated cassette tapes of copyrighted films. The Court
upheld the seizure as to films specified in the warrant,
but not as to those seized under the generic description
in the warrant of “cassettes on to which . . . copyrighted
films . . . have been electronically transferred and re-
corded.” The Court held that the warrant provided in-
sufficient guidance to the searching agents when it author-
App. 30
ized the search of illegally obtained films not specified in
the affidavit. United States v. Cook, supra.
Surely the term “all corporate records” is far more
general than authorization to search for certain specified
pirated cassettes and others of similar type. Furthermore,
the government’s contention that the challenged warrants
were not general warrants because the objects to be
seized left nothing to the discretion of the executing of
ficers is simply without merit. It is no doubt true that
the warrants authorized the seizure of “all corporate rec-
ords’’ and an agent in possession of such a warrant need
not discriminate between items to be seized and items
to be left alone. But the Fourth Amendment prohibition
against general warrants was designed to do more than
prohibit discretionary searches by government agents. The
requirement of particularity was not only to circumscribe
the discretion of the executing officers, it was also to in-
form the person subject to the search and seizure what
the officers are entitled to take. Application of Lafayette
Academy, 610 F.2d 1 (1st Cir. 1979).
The government has cited four cases in support of its
claim that all of the records of a business permeated with
fraud may be seized. The first is National City Trading
Corp. v. United States, 635 F.2d 1020 (2d Cir. 1980). In
that case the warrant specified numerous particular types
of corporate records which could be seized. The claim was
that these records may have included materials pertain-
ing to legitimate legal records in a law office located
within the business suite housing a commodities brokerage
which was the subject of the search. The Court noted that
the physical layout of the premises to be searched was
described in great detail in the affidavit. Further, the
affiant prepared a lengthy typed memorandum for the
searching agents explaining that the search was not to
reach the law practice. Finally, the Assistant United
States Attorney also instructed the searching agents on
the proper limitations of the search. The facts of the Na-
tional City Trading Corporation case in which the search
was upheld, are simply unlike this case. The warrants in
App. 31
that case was far more specific, and limiting instructions
were given.
The government also cites United States v. Bithoney,
631 F.2d 1 (1st Cir. 1980). The warrant in that case au-
thorized the seizure of specific records pertaining to seven-
teen individuals. As the Court stated, the warrant:
. . undertook to narrow and identify the documents
subject to seizure, breaking them down into specific
categories. Jd. at 2.
The government next cites United States v. Brien, 617
F.2d 299 (1st Cir. 1980), cert. denied, 446 U.S. 919 (1980).
The warrant in that case authorized the seizure of:
Lloyd Carr’s bank statements, case [sic] receipt books,
option purchase records, sales material distributed to
customers, employee compensation records, customer
account records, sales training material and customer
lists. Id. at 306.
The Court held:
We hold that where there is probable cause to find
that there exists a pervasive scheme to defraud, all
the business records of an enterprise may be seized,
if they are, as here, accurately described so that the
executing officers have no need to exercise their own
judgment as to what should be seized. Id. at 309,
(Emphasis added).
Finally, the government cites United States v. Louder-
man, 576 F.2d 1388 (9th Cir. 1978), cert. denied, 439 U.S.
896 (1978). Again, the warrants in the case were not
general but were limited to documents and records per-
taining to the efforts of the subject company to obtain
confidential information from the telephone company.
A good summary of the law in this area is contained
in United States v. Abrams, 615 F.2d 541 (1st Cir. 1980).
The warrant in that case specified a search for:
. certain business and billing and medical records
of patients of Doctors Abrams, London, Braun, and
App. 32
Abrams, London and Associates, Inc. which show ac-
tual medical services claimed to have been performed
in a scheme to defraud the United States and to sub-
mit false medicare and medicaid claims for payments
to the United States or its agents; in violation of
Title 18, United States Code, Section 1001. Jd. at 542.
Although the Abrams warrant was far more specific than
those in this case, the Court discussed the law of such
searches in great detail, noting that:
Business records, although they may contain evidence
of fraud, do not fall into the category of stolen or
contraband goods. The government has cited no case
and we have found none in which a seizure of all rec-
ords was held valid pursuant to a generally worded
warrant such as we have here. In the cases we have
canvassed where a seizure of records was upheld,
there has been some limitation in the warrant as
to the records to be seized. /d. at 545 (Citations
omitted).
The classic statement of the particularity required
in search warrants was made by the Supreme Court
of the United States in Marron v. United States, 275
U.S. 192, 196 (1927):
The requirement that warrants shall particularly de-
scribe the things to be seized makes general searches
under them impossible and prevents the seizure of
one thing under a warrant describing another. As to
what is to be taken, nothing is left to the discretion
of the officer executing the warrant.
Many cases have come and gone since then, but this Court
is unaware of any authorizing a search and seizure of “all
corporate records,”’ with no further description or limita-
tion. If these warrants are upheld the entire meaning and
intent of the Fourth Amendment would be impaired as it
pertains to particularly describing the items to be seized.
Accordingly, it is this Court’s considered judgment that
the warrant is unconstitutionally general.
App. 33
ITI.
The Court has also considered the remaining issues raised
by the defendants, but finds none of them to require sup:
pression. This Court finds probable cause in the affidavit
to support a properly limited search of the two corporate
premises. Nor does the affidavit fail for lack of reliabil-
ity on the part of the informant. Further, although the
defendants contend, with supporting affidavits, that there
are material false representations in the affidavit, the facts
contested for the most part go to the general issues in the
case and must await trial. Indeed, many of the claimed
inisrepresentations were made not by the affiant agent,
but by the informant.
Finally, the defendants allege that the agents exceeded
their authority in executing the warrant, in that they
seized materials which were not even within the broad
general category of all corporate records. The remedy in
such situations is, of course, suppression if the govern-
ment should attempt to introduce such items in evidence,
and return of the property upon a proper motion.
IV.
For all of these reasons, it is thereupon
ORDERED AND ADJUDGED that this motion to sup-
press is GRANTED upon the basis that the warrants were
impermissibly general, and all materials seized pursuant
to these warrants, as well as all fruits of such seizures
shall be suppressed, except as to the envelopes and the
United States currency, both of which were properly de-
scribed in the C & A warrant.
DONE AND ORDERED in chambers at Miami, Florida,
this 19th day of February, 1982.
/s/ James W. Kehoe
United States District Judge
CC: Magistrate Sorrentino
All Counsel of Record
App. 34
APPENDIX 4
[Filed April 7, 1989]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 87-5425
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES NORTON,
Defendant-Appellant.
No. 87-5648
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PauL Fosco, JAMES PINKARD, PAUL A. Di FRANCO,
JAMES NORTON,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Florida
App. 35
ORDER:
ee
(-)
The motion of appellants for (x) stay ( ) recall and
stay of the issuance of the mandate pending petition
for writ of certiorari is DENIED.
The motion of appellants for (x) stay (_ ) recall and
stay of the issuance of the mandate pending petition
for writ of certiorari is GRANTED to and including
5-15-89, the stay to continue in force until the final
disposition of the case by the Supreme Court, pro-
vided that within the period above mentioned there
shall be filed with the Clerk of this Court the cer-
tificate of the Clerk of the Supreme Court that the
certiorari petition has been filed. The Clerk shall
issue the mandate upon the filing of a copy of an
order of the Supreme Court denying the writ, or
upon expiration of the stay granted herein, unless
the above mentioned certificate shall be filed with
the Clerk of this Court within that time.
* * * KX *
/s/ ALBERT J. HENDERSON
United States Circuit Judge
App. 36
APPENDIX 5
(U.S. v. Accardo, 749 F.2d 1477 (1ith Cir. 1985)]
JNITED STATES of America,
Plaintiff-Appellant,
Cross-Appellee,
Vv
Anthony ACCARDO, et al.,
Defendants-Appellees,
Cross-Appellants.
No. 82-5380.
United States Court of Appeals,
Eleventh Circuit.
Jan. 8, 1985.
Defendants moved to suppress evidence seized under
search warrant, and the United States District Court for
the Southern District of Florida, James W. Kehoe, J.,
granted the motion. On the Government’s interlocutory
appeal, the Court of Appeals, James C. Hill, Circuit
Judge, held that the remand to district court was appro-
priate for determination whether good-faith exception to
Fourth Amendment exclusionary rule applied, where dis-
trict court conducted suppression hearing and, without
considering whether there was a good-faith exception,
found search warrant unconstitutionally general and sup-
pressed evidence seized thereunder.
Vacated and case remanded.
Thornberry, Senior Circuit Judge, sitting by designa-
tion, concurred specially and filed opinion.
Appeals from the United States District Court for the
Southern District of Florida.
Before GopBOLD, Chief Judge, HILL, Circuit Judge, and
THORNBERRY*, Senior Circuit Judge. ,
* Honorable Homer Thornberry, U.S. Circuit Judge for the Fifth
Circuit, sitting by designation.
App. 37
CORRECTED OPINION
JAMES C. HILL, circuit Judge:
This appeal requires us to consider the good faith ex-
ception to the fourth amendment exclusionary rule, recent-
ly established by the Supreme Court in United States v.
Leon, ___ U.S. ___, 104 S.Ct. 3405, 82 L.Ed.2d 677
(1984), and Massachusetts v. Sheppard, ____ U.S. ___,
104 S.ct. 3424, 82 L.Ed.2d 737 (1984). In light of these
1984 decisions, we vacate the 1982 district court order,
which suppressed evidence seized by officers under a war-
rant held by the district court to have been insufficiently
particular to meet fourth amendment standards, and re-
mand this case to the district court to determine whether
those officers acted in good faith.
We briefly summarize the material facts considered by
the district court in deciding whether to grant the mo-
tion to suppress. Federal agents in Chicago suspected sev-
eral health care services companies of labor racketeering
activities. Their investigation led them to Daniel G.
Milano, Jr., a former officer of one of the companies under
suspicion, Consultant and Administrators, Inc. (C & A).
Milano, whose father was executive vice-president of C
& A, told FBI agents that C & A paid labor union offi-
cials kickbacks to ensure that all C & A bids for union
health services contracts were approved. According to
Milano, C & A officials formed two companies, Pinckard
and Associates, Inc. (Pinckard), and Fortune Services, to
divert revenue from C & A into a kickback fund from
which labor leaders were paid. Although Pinckard and
Fortune primarily served as conduits for the payoff
scheme, the companies also performed the task of verify-
ing eligibility for coverage under the C & A contracts with
the unions. Milano fully described the billing procedures
used by Pinckard and Fortune, the manner in which il-
legal payments were made, and the collection of monthly
cash contributions from C & A officers for distributien to
union officials. ’
App. 38
At the conclusion of this investigation, an FBI agent
swore out an affidavit in which he recounted Milano’s de-
scription of the alleged kickback scheme. The affidavit de-
tailed the completeness of the fraud that permeated the
business dealings between the companies involved. Based
on that affidavit, a federal magistrate in Chicago issued
warrants authorizing the search of the administrative of-
fices of C & A and Pinckard. Federal agents conducted
such a search and seized several volumes of documents
from both companies.
Racketeering charges were then filed in the District
Court for the Southern District of Florida against var-
ious labor leaders and officers of C & A and Pinckard.?
1 An independent federal investigation in Miami apparently led
authorities there to suspect several of the figures under investiga-
tion in Chicago of similar criminal activity in Florida. Indeed, a
federal grand jury in Miami issued subpoenas duces tecum to
various C & A and Pinckard officers and defendant-appellee Di
Franco, requiring them to produce most of the materials seized
in the search now under attack. The district court ruled that the
documents obtained by the subpoena were not tainted by the il-
legal searches and denied suppression motions as to that evidence.
Whether the materials seized in the challenged search are thus
subject to the “independent source” rule, see Segura v. United
States, ___ U.S. ___., 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), or
the “inevitable discovery” doctrine, see United States v. Kroesser,
731 F.2d 1509 (11th Cir. 1984), are questions we need not decide.
We also see no reason to consider whether defendants-appellees
can invoke the interlocutory appeal provisions of 18 U.S.C. § 3731,
see United States v. Moody, 485 F.2d 531, 534 (8d Cir. 1973) (allow-
ing cross-appeal), to challenge the district court’s refusal to sup-
press the evidence obtained by subpoena. Since we vacate the
order suppressing the records seized in the C & A and Pinckard
searches, the order defendants-appellees seek to appeal may be
unnecessary to the district court’s disposition of the suppression
motions. Whether this is the case depends on how the district
court resolves the good faith issue on remand. See infra, 1479-80.
This court therefore will wait for resolution of that issue and not
address herein the question involving invocation of the interloc-
utory appeal provisions of 18 U.S.C. § 3731.
App. 39
Shortly after they were indicted, defendants? moved to
suppress all materials seized in the C & A and Pinckard
searches. The district court conducted a suppression hear-
ing, and, finding the warrant issued by the Chicago magis-
trate “unconstitutionally general,” suppressed the cor-
porate records seized from the offices of C & A and Pinck-
ard. At the hearing, the district court did not consider
whether there was a good faith exception to the fourth
amendment exclusionary rule, nor whether the FBI agents
had acted in good faith. The United States subsequently
brought this interlocutory appeal pursuant to 18 U.S.C.
§ 3731 (1976), challenging the district court’s suppression
order on the ground that the officers had acted in good
faith. We now vacate and remand.
2 At the time these charges were filed, defendant-appellee Pinckard
was president of Pinckard and Associates, Inc.; defendant-appellee
Fosco was president of PF Insurance Agency and vice-president
of C & A, Inc.; and defendant-appellee Norton was president of
C & A, Inc.; and defendant-appellee Di Franco was vice-president
of Dental and Vision Care Centers, Inc., a company that alleged-
ly provided kickback monies to receive union health care business.
See Supp. Record on Appeal at 1-14.
The district court found that among the twelve named codefen-
dants only Pinckard, Fosco, Norton and Di Franco had standing
to challenge the searches. Therefore, they are the only parties to
the government’s appeal.
3 The Government did not originally challenge the district court’s
conclusion that the warrants were impermissibly general, see Stan-
ford v. Texas, 379 U.S. 476, 481-86, 85 S.Ct. 506, 509-12, 13 L.Ed.
2d 431 (1965), instead urging this court to extend our ruling in
United States v. Williams, 622 F.2d 830 (5th Cir. 1980) (en banc),
cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981),
to encompass the officers’ actions in this case. See Brief for Ap-
pellant at 13-26.
Shortly before this case was orally argued, however, the govern-
ment submitted authorities that supported the validity of broad
warrants covering searches of businesses permeated with fraud.
See, e.g., United States v. Offices Known As 50 State Distributing
Co., 708 F.2d 1371 (9th Cir. 1983). While we chose to dispose of
this appeal as it was briefed by all parties, we note that the af-
(Footnote continued on following page)
App. 40
Since the district court issued the suppression order in
1982, the Supreme Court has held that there is a good.
faith exception to the exclusionary rule. In United States
v. Leon the Supreme Court considered “whether the
Fourth Amendment exclusionary rule should be modified
so as not to bar the use in the prosecution’s case-in-
chief of evidence obtained by officers acting in reasonable
reliance on a search warrant issued by a detached and
neutral magistrate but ultimately found to be unsupported
by probable cause.” 104 S.Ct. at 3409. The Court answered
that question by taking yet another look at the remedial
objectives thought served by the exclusionary rule. /d.
at 3414-16. Concluding that the rule remains viable only
as a deterrent to police misconduct, the Court held that
the costs to the administration of justice of excluding
highly probative evidence outweighed any benefits from
the rule’s deterrent effect where police officers have acted
in objectively reasonable reliance on a warrant later found
to be defective. Jd. at 3419-21. With certain well-defined
limitations, the rule announced by the Court required
3 continued
fidavit supporting the C & A and Pinckard search warrants alleged
that Pinckard was incorporated solely as a conduit for the flow
of kickback monies. Thus, at least with respect to Pinckard, the
magistrate who issued these warrants might have had reason to
authorize the seizure of ‘‘all corporate records.” See, e.g., United
States v. Brien, 617 F.2d 299, 305-09 (1st Cir.) (approving war-
rant authorizing seizure of materials that made up “most of the
business records” of investment firm), cert. denied, 446 U.S. 919,
100 S.Ct. 1854, 64 L.Ed.2d 273 (1980); see generaily United States
v. Wuagneux, 683 F.2d 1343, 1348-51 (11th Cir. 1982) (collecting
cases on warrants in context of complex, fraudulent business
schemes), cert. denied, ___ U.S. ___, 104 S.Ct. 69, 78 L.Ed.2d
83 (1983).
4 The Court explained three instances where, although the of-
ficer has acted in good faith, suppression remains an appropriate
remedy:
The exception we recognize today will also not apply in cases
where the issuing magistrate wholly abandoned his judicial role
in the manner condemned in Lo-Ji Sales, Inc. v. New York,
(Footnote continued on following page)
aa
App. 41
suppression “‘only if the officers were dishonest or reck-
less in preparing their affidavit or could not have har-
bored an objectively reasonable belief in the existence of
probable cause.” Jd. at 3423. The, turning to the facts
before it, the Court found the officers’ reliance on the
magistrate’s determination of probable cause to be reason-
able; the warrant was supported by much more than a
‘‘bare bones” affidavit and was not seriously challenged
by any of the defendants. Under those circumstances, the
Court discerned no reason for applying the “extreme sanc-
tion of exclusion.” Jd. at 3423.
Massachusetts v. Sheppard presented a situation seem-
ingly analogous to the case before this court. In Shep-
pard the trial judge suppressed evidence seized during
the execution of a warrant that failed to describe with
particularity the items to be seized. 104 S.Ct. at 3428.
The Supreme Judicial Court of Massachusetts refused to
recognize a good faith exception to the exclusionary rule
and affirmed. The Supreme Court reversed, emphasizing
that the officers had evidenced their good faith by sub-
mitting an affidavit to a judge, who then drafted a war-
rant authorizing the search. Jd. at 3429. Any error in fail-
4 continued
442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such
circumstances, no reasonably well-trained officer should rely
on the warrant. Nor would an officer manifest objective good
faith in relying on a warrant based on an affidavit ‘so lack-
ing in indicia of probable cause as to render official belief in
its existence entirely unreasonable.” Brown v. Illinois, 422
U.S. [590] at 610-611, 95 S.Ct. [2254] at 2265-2266 [45 L.Ed.2d
416 (1975)] (POWELL, J., conturring in part); see Illinois v.
Gates, supra, 462 U.S. [213] at [246], 103 S.Ct. [2317] at [2336]
(76 L.Ed.2d 527 (1983)] (WHITE, J., concurring in the judg-
ment). Finally, depending on the circumstances of the particu-
lar case, a warrant may be so facially deficient—i.e., in failing
to particularize the place to be searched or the things to be
seized—that the executing officers cannot reasonably presume
it to be a Cf. Massachusetts v. Sheppard, ____ U.S., at
ao oe aa. at
104 S.Ct. at 3422.
App. 42
ing to meet the particularity requirement of the fourth
amendment, the Court held, was committed by the judge,
not the police officers. Jd. Therefore, the officers’ conduct
was objectively reasonable and well within the bounds of
the rule announced in Leon.
On the facts considered by the district court at the sup-
pression hearing, the pending appeal is within the good
faith exception articulated in Leon and Sheppard. The
agents here “took every step that could reasonably be
expected of them.” Jd. As in Sheppard, the agents sub-
mitted a detailed affidavit to a magistrate in order to
secure the search warrants. The affidavit alleged a per-
vasive fraud that had resulted in the incorporation of 2
sham business to channel kickback monies to labor offi-
cials. In addition, the affidavit was reviewed by several
attorneys in the U.S. Attorney’s office before it was pre-
sented to a magistrate, who found probable cause and
issued the warrants. It is not relevant that here, unlike
in Sheppard, the magistrate did not make changes in the
warrant or expressly assure the agents that the warrant
was adequate. Since the agents here did not use, and did
not know that they used, an improper form, they had no
reason to expect the magistrate to make changes in the
warrant or to especially assure them of its adequacy.
Moreover, the warrant’s authorization to seize “‘all cor-
porate records” does not transgress the limitation on the
good faith exception described by the Supreme Court as
cases involving warrants “‘so facially deficient—i.e., fail-
ing to particularize the place to be searched or the things
to be seized—that the executing officers cannot reason-
ably presume it to be valid.” 104 S.Ct. at 3422. Arguably,
“all corporate records” is significantly more general than
the ‘any controlled substance’ language contained in the
Sheppard warrant. 104 S.Ct. at 3427 & n. 2. Even so, this
is not dispositive. The question here is not the legal valid-
ity of the warrant but the reasonableness of the offi-
cers’ reliance on it. This is not an instance in which “‘it
is plainly evident that a magistrate or judge had no busi-
ness issuing a warrant,” id. at 3429 n. 7 (quoting J/linois v.
App. 43
Gates, 462 U.S. 213 at ___, 108 S.Ct. 2317 at 2345, 76
L.Ed.2d 527). In addition, the investigating officers were
told by a former C & A executive that Pinckard was a
sham corporation. Every indication was that C & A offi-
cials were extensively involved in the kickback scheme.
This type of complex financial fraud, sometimes referred
to as the “paper puzzle,” has been held to justify a more
flexible reading of the fourth amendment particularity re-
quirement. See, e.g., United States v. Wuagneux, 683 F.2d
1343, 1348-50 (11th Cir. 1982) (citing cases), cert. denied,
nniion: SM , 104 S.Ct. 69, 78 L.Ed.2d 83 (1983).5
On the facts considered by the district court in decid-
ing whether to grant the motion to suppress, the good
faith of the officers would be established. However, we
are mindful that at the time of the suppression hearing
Leon and Sheppard had not been decided, and that the
district court did not hold an evidentiary hearing on, nor
in any way consider, the issue of the officers’ good faith.
Although the ultimate question of good faith vel non is
a legal issue, which this court may resolve, the ascertain-
ment of the facts upon which to base a determination re-
garding good faith is for the district judge. In Leon, the
Supreme Court said that in determining whether a police
officer acted in good faith, “‘all of the circumstances. . .
may be considered.” 104 S.Ct. at 3421 n. 23. It is not
clear that we have had the opportunity to consider all
the circumstances in this case, as no evidentiary hearing
was held on the good faith issue. Both parties.should be
given an opportunity to present evidence touching upon
the conduct of the officers. We therefore feel it best .to
remand the case to the district court, where the parties
* In Wuagneux the court upheld a warrant that in part author-
ized the seizure of records of ‘the receipt and disbursement of
kickback funds.” Wuagneux, 683 F.2d at 1350-51. The court em-
phasized that despite the generality of this description, it was
properly construed as referring to a very special detailed kickback
scheme in view of the affidavit that accompanied it. Jd. This rea-
soning reinforces the conclusion in the present case.
App. 44 7
shall be afforded a hearing on the good faith issue. The
district court, guided by Leon and Sheppard, and this
opinion, then may determine whether the officers acted
in good faith.
Accordingly, the order of the district court is VACATED
and this case is REMANDED for proceedings consistent
with this opinion.
THORNBERRY, Senior Circuit Judge, sitting by designa-
tion, concurring specially:
Since ‘i]t is not clear that we have had an opportuni-
ty to consider all the circumstances in this case, as no
evidentiary hearing was held on the good faith issue,’”’ and
“Twle therefore feel it is best to remand the case to the
district court, where both parties shall be afforded a hear-
ing on the good faith issue,” I concur only in that por-
tion of the court’s opinion which supports the decision to
remand the case to the district court.
App. 45
APPENDIX 6
United States of America United States District Court
vs. for Southern District of
JAMES F. NORTON Florida, Docket
No. 81-230-CR-KEHOE (8)
AMENDED TO REFLECT CORRECT TITLE.
JUDGMENT AND PROBATION/COMMITMENT ORDER
In the presence of the attorney for the government the
defendant appeared in person on this date July 21, 1987.
___. WITHOUT COUNSEL However the court advised
defendant of right to counsel and asked whether defen-
dant desired to have counsel appointed by the court and
the defendant thereupon waived assistance of counsel.
_X WITH COUNSEL THOMAS DECKER, ESQ.
____ GUILTY, and the court being satisfied that there is
a factual basis for the plea,
__ NOLO CONTENDERE,
_X NOT GUILTY
There being a verdict of
___ NOT GUILTY. Defendant is discharged
_X_ GUILTY.
Defendant has been convicted as charged of the offense(s)
of Ct. 1—Conspired to participate in the conduct of the
affairs of the Laborer’s Union through a pattern of rack-
eteering, in violation of 18:1962(d).
The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
App. 46
charged and convicted and ordered that: The defendant
is hereby committed to the custody of the Attorney Gen-
eral or his authorized representative for imprisonment for
a period of TEN (10) YEARS. It is further ORDERED
AND ADJUDGED that defendant voluntarily surrender to
the institution designated by the Bureau of Prisons.
* * %* K
The court orders commitment to the custody of the Attor-
ney General and recommends, that defendant be incarcer-
ated at Oxford F.C.I., Wisconsin.
/s/ JAMES W. KEHOE
U.S. District Judge
AUG. 6, 1987
App. 47
United States of America United States District Court
Vs. for Southern District of
JAMES PINCKARD Florida, Docket
No. 81-230-CR-KEHOE (12)
AMENDED TO REFLECT CORRECT TITLE.
JUDGMENT AND PROBATION/COMMITMENT ORDER
In the presence of the attorney for the government tne
defendant appeared in person on this date July 21, 1987.
___. WITHOUT COUNSEL However the court advised
defendant of right to counsel and asked whether defen-
dant desired to have counsel appointed by the court and
the defendant thereupon waived assistance of counsel.
_X WITH COUNSEL ARNOLD KANTER, ESQ.
___. GUILTY, and the court being satisfied that there is
a factual basis for the plea,
__. NOLO CONTENDERE,
_X NOT GUILTY
There being a verdict of
__ NOT GUILTY. Defendant is discharged
_X GUILTY. as charged in ct. 1 of the ind.
Defendant has been convicted as charged of the offense(s)
of Ct. 1—Conspired to participate in the conduct of the
affairs of the Laborer’s Union through a pattern of rack-
eteering, in violation of 18:1962(d).
The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
charged and convicted and ordered that: The defendant
is hereby committed to the custody of the Attorney Gen-
eral or his authorized representative for imprisonment for
a period of TEN (10) YEARS. It is further ORDERED
App. 48
AND ADJUDGED that defendant voluntarily surrender to
the institution designated by the Bureau of Prisons.
xk Ok x * 3
The court orders commitment to the custody of the Attor-
ney General and recommends, that defendant be incarcer
ated at Duluth F.P.C., Minnesota.
AUG. 6, 1987
App. 49
United States of America United States District Court
VS. for Southern District of
PAUL FOSCO Florida, Docket
No. 81-230-CR-KEHOE (5
AMENDED TO REFLECT CORRECT TITLE
JUDGMENT AND PROBATION/COMMITMENT ORDER
In the presence of the attorney for the government the
defendant appeared in person on this date July 21, 1987.
WITHOUT COUNSEL However the court advised
defendant of right to counsel and asked whether defen-
dant desired to have counsel appointed by the court and
the defendant thereupon waived assistance of counsel.
X WITH COUNSEL SAMUEL BETAR, ESQ.
GUILTY, and the court being satisfied that there is
a factual basis for the plea,
NOLO CONTENDERE,
X_ NOT GUILTY
There being a verdict of
_ NOT GUILTY. Defendant is discharged
X_ GUILTY. as charged in ct. 1 of the ind.
Defendant has been convicted as charged of the offense(s)
of Ct. 1—Conspired to participate in the conduct of the
affairs of the Laborer’s Union through a pattern of rack-
eteering, in violation of 18:1962(d).
The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
charged and convicted and ordered that: The defendant
is hereby committed to the custody of the Attorney Gen-
eral or his authorized representative for imprisonment for
a period of TEN (10) YEARS. It is further ORDERED
App. 50
AND ADJUDGED that defendant voluntarily surrender to
the institution designated by the Bureau of Prisons.
es. te. e- *
The court orders commitment to the custody of the Attor-
ney General and recommends, that defendant be incarcer-
ated at Duluth F.P.C., Minnesota or in the alternative,
Oxford F.C.1., Wisconsin.
/s/ JAMES W. KEHOE
U.S. District Judge
AUG. 6, 1987
App. 51
United States of America United States District Court
Vs. for Southern District of
PAUL A. DI FRANCO Florida, Docket
No. 81-230-CR-KEHOE (3)
AMENDED TO REFLECT CORRECT TITLE.
JUDGMENT AND PROBATION/COMMITMENT ORDER
In the presence of the attorney for the government the
defendant appeared in person on this date July 21, 1987.
__. WITHOUT COUNSEL However the court advised
defendant of right to counsel and asked whether defen-
dant desired to have counsel appointed by the court and
the defendant thereupon waived assistance of counsel.
_X WITH COUNSEL THOMAS FORAN, ESQ. and
JACK CARRIGLIO, ESQ.
____ GUILTY, and the court being satisfied that there is
a factual basis for the plea,
___ NOLO CONTENDERE,
_X NOT GUILTY
There being a verdict of
___. NOT GUILTY. Defendant is discharged
_X GUILTY. as charged in ct. 1 of the ind.
Defendant has been convicted as charged of the offense(s)
of Ct. 1—Conspired to participate in the conduct of the
affairs of the Laborer’s Union through a pattern of rack-
eteering, in violation of 18:1962(d).
The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
charged and convicted and ordered that: The defendant
is hereby committed-to the custody of the Attorney Gen-
eral or his authorized representative for imprisonment for
a period of TEN (10) YEARS. It is further ORDERED
App. 52
AND ADJUDGED that defendant voluntarily surrender to
the institution designated by the Bureau of Prisons.
*x* * * *
The court orders commitment to the custody of the Attor-
ney General and recommends, that defendant be incarcer-
ated at Duluth F.P.C., Minnesota or in the alternative,
Oxford F.C.I., Wisconsin.
/s/ JAMES W. KEHOE
U.S. District Judge
AUG. 6, 1987
App. 53
APPENDIX 7
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION |
Magistrate’s Docket No.
Case No. 76 M 208
UNITED STATES OF AMERICA,
VS.
The administrative offices of Consultants and Adminis-
trators, Inc., located on the second floor of the two-story
building at 220 South Ashland Boulevard, Chicago, Illinois
SEARCH WARRANT
To Any Special Agent of the Federal Bureau of Investi-
gation
Affidavit having been made before me by James
Wagner, Special Agent, Federal Bureau of Investigation
that he has reason to believe that on the premises known
as the administrative offices of Consultants and Adminis-
trators, Inc., located on the second floor of the two-story
building at 220 South Ashland Boulevard, Chicago, Illinois
in the Northern District of Illinois there is now being con-
cealed certain property, namely all corporate records of
Consultants and Administrators, Inc.; a black vinyl book,
approximately six inches wide by twelve inches long, con-
taining copies of contracts, correspondence, bank state-
ments and receipts; envelopes and United States currency
which are evidence and instrumentalities of the offense
App. 54
set forth in Section 1954 of Title 18, United States Code,
and as I am satisfied that there is probable cause to be-
lieve that the property so described is being concealed
on the premises above described and that the foregoing
grounds for application for issuance of the search warrant
exist.
You are hereby commanded to search forthwith the
place named for the property specified, serving this war-
rant and making the search in the daytime’ and if the
property be found there to seize it, leaving a copy of this
warrant and a receipt for the property taken, and prepare
a written inventory of the property seized and return this
warrant and bring the property before me within ten days
of this date, as required by law. The search, herein au-
thorized, must be executed within the period of two days.
Dated this 5th day of October, 1976.
TIME 4:45 P.M.
/s/ Olga Jurco
U.S. Magistrate
1 The Federal Rules of Criminal Procedure provide: ‘‘The war-
rant shall direct that it be served in the daytime, but if the af-
fidavits are positive that the property is on the person or in the
place to be searched, the warrant may direct that it be served
at any time.”’ (Rule 41C)
App. 55
APPENDIX 8
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Magistrate’s Docket No.
Case No. 76 M 209
UNITED STATES OF AMERICA,
VS.
The administrative offices of Pinckard and Associates,
Inc., located on the first floor of the two-story building
at 220 South Ashland Boulevard, Chicago, IIl.
SEARCH WARRANT
To Any Special Agents of the Federal Bureau of Investi-
gation
Affidavit having been made before me by James
Wagner, Speciai Agent, Federal Bureau of Investigation
that he has reason to believe that on the premises known
as the administrative offices of Pinckard and Associates,
Inc., located on the first floor of the two-story building
at 220 South Ashland Boulevard, Chicago, Illinois in
the Northern District of Illinois there is now being con-
cealed certain property, namely all corporate records of
Pinckard and Associates, Inc. which are evidence and in-
strumentalities of the offense set forth in Section 1954
of Title 18, United States Code, and as I am satisfied that
there is probable cause to believe that the property so
App. 56
described is being concealed on the premises above de-
scribed and that the foregoing grounds for application for
issuance of the search warrant exist.
You are hereby commanded to search forthwith the
place named for the property specified, serving this war-
rant and making the search in the daytime! and if the
property be found there to seize it, leaving a copy of this
warrant and a receipt for the property taken, and prepare
a written inventory of the property seized and return this
warrant and bring the property before me within ten days
of this date, as required by law. The search, herein au-
thorized, must be executed within the period of two days.
Dated this 5th day of October, 1976.
TIME
/s/ Olga Jurco
U.S. Magistrate
1 The Federal Rules of Criminal Procedure provide: “The war-
rant shall direct that it be served in the daytime, but if the af-
fidavits are positive that the property is on the person or in the
place to be searched, the warrant may direct that it be served
at any time.” (Rule 41C)
App. 57
APPENDIX 9
ANY VERDICT MUST REPRESENT THE CONSIDERED
JUDGMENT OF EACH JUROR. IN ORDER TO RETURN
A VERDICT, IT IS NECESSARY THAT EACH JUROR
AGREE THERETO. IN OTHER WORDS, YOUR VERDICT
MUST BE UNANIMOUS.
IT IS YOUR DUTY AS JURORS, TO CONSJLT WITH
ONE ANOTHER, AND TO DELIBERATE IN AN EFFORT
TO REACH AGREEMENT IF YOU CAN DO SO WITHOUT
VIOLENCE TO INDIVIDUAL JUDGMENT. EACH OF
YOU MUST DECIDE THE CASE FOR YOURSELF, BUT
ONLY AFTER AN IMPARTIAL CONSIDERATION OF
THE EVIDENCE IN THE CASE WITH YOUR FELLOW
JURORS. IN THE COURSE OF YOUR DELIBERATIONS,
DO NOT HESITATE TO RE-EXAMINE YOUR OWN
VIEWS AND CHANGE YOUR OPINION IF CONVINCED
IT IS ERRONEOUS. BUT DO NOT SURRENDER YOUR
HONEST CONVICTION AS TO THE WEIGHT OF EFFECT
OF THE EVIDENCE SOLELY BECAUSE OF THE OPIN-
ION OF YOUR FELLOW JURORS, OR FOR THE MERE
PURPOSE OF RETURNING A VERDICT.
REMEMBER AT ALL TIMES, YOU ARE NOT PARTI-
SANS. YOU ARE JUDGES—JUDGES OF THE FACTS.
YOUR SOLE INTEREST IS TO SEEK THE TRUTH FROM
THE EVIDENCE IN THE CASE.
Instruction No. 32
APPENDIX
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.