Opposition Brief — Norton v. United States

Supreme Court, U.S.

. ee Se ADs

y) SU. |

MRY 31 1989

No. 88-1889

JOSEPH F. SPANIOL, JR,

cementite smi:

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

JAMES F. NORTON, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

ROBERT J. ERICKSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether evidence seized in reliance on a search war-

rant should have been suppressed on the ground that the

description of the property to be seized under the warrant

was insufficiently particular.

2. Whether the district court’s supplemental instruc-

tion to the jury was coercive.

(1)

——

a

TABLE OF CONTENTS

Page

re er ag ssc gob hale S Sok bree ss wae kw l

a te ee es sorb ed's bw eww od l

aces wolee Sodus ed eb e8% ae 2

OE ae 9

re ee le acca gis wie #4. 1K He ¥4 68 www 23

TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) ............. 18, 19

Andresen v. Maryland, 427 U.S. 463 (1976) ............ 13

Bowen v. United States, 153 F.2d 747 (8th Cir.), cert.

RE | 21

Brasfield v. United States, 272 U.S. 448 (1926) .......... 19, 20,

| ee ae

Center Art Galleries— Hawaii, Inc. v. United States, 875

ee te) a 16

Cornell v. Iowa, 628 F.2d 1044 (8th Cir. 1980), cert.

RR |) 2

Gafford v. Warden, 434 F.2d 318 (hOth Cir. 1970) ....... 21

Holt v. Wyrick, 649 F.2d 543 (8th Cir. 1981) ........... 22

Illinois v. Krull, 480 U.S. 340 (1987) .................. 12

Impounded Case (Law Firm), In re, 840 F.2d 196 (3d

eres be bg es pas 8064 -w bea eA 9

Kawakita v. United States, 343 U.S. 717 (1952), affg

de RE OE eR) ) ee

Lias v. United States, 284 U.S. 584, affg S!-F:2d

eee eee. O99E).. 2.2... 2, 2 oe ee 19

Lowenfield v. Phelps }68S. Ct. 546 (1988) ............ eo, 28,

ee aa; 29

_———_ Massachusetts v. Sheppard, 468 U.S. 981 (1984) ........ 7-8,

12, 1

National City Trading Corp. v. United States, 635 F.2d

es as ep Mik-e msc o ev ace as 11

Sanders v. United States, 415 F.2d 621 (Sth Cir. 1969),

Sec en. ST GS.o, PIO CEDTOD ...... .cc ee cc ne eaeee 21

Search of 4801 Fyler Ave., In re, No. 88-1573 (8th Cir.

AE Ge a la 10

IV

Cases — Continued: Page

Tanner v. United States, 483 U.S. 107 (1987) ........... 23

United States v. Abrams, 615 F.2d 541 (ist Cir. 1980) .... 13

United States v. Accardo, 749 F.2d 1477 (11th Cir.), cert.

ee | 8

United States v. Akbar, 698 F.2d 378 (9th Cir.), cert.

eo ek ee 21

United States v. Bailey, 468 F.2d 652 (Sth Cir. 1972),

aff'd, 480 F.2d 518 (Sth Cir. 1973) .................. 21

United States v. Brien, 617 F.2d 299 (Ist Cir.), cert.

I, Se ec EE van Si ks aka dw eh avanas 10

United States v. Brown, 832 F.2d 991 (7th Cir. 1987),

cert. denied, 108 S. Ct. 1084 (1988) ................. 10

United States v. Buck, 813 F.2d 588 (2d Cir.), cert. der ed,

Se ts ey ED oo osc ue hea eb es a oi

United States v. Caporole, 806 F.2d 1487 (1th €1r.), cert.

denied, 483 U.S. 1021 (1987)... ............. 2

United States v--Christine, 687 F.2d 749 (3d Cir. 1982) . 9

_United States v. Cook, 663 F.2d 808 (8th Cir. 1981) ..... 21

United States v. Crozier, 777 F.2d 1376 (9th Cir. 1985) ... 15

United States v. Diaz, 841 F.2d 1 (ist Cir. 1988) ......... 14, 16

United States v. Diggs, 522 F.2d 1310 (D.C. Cir. 1975),

cert. denied, 429 U.S. 852 (1976) ................... 21

United States v. Dozier, 844 F.2d 701 (9th Cir. 1988),

Cert. Gemned, 109 S. Ct. SRS CIGD ow cc ce cic civecss 15

United States v. Fama, 758 F.2d 834 (2d Cir. 1985) ...... 13

United States v. Flanner., 451 F.2d 880 (1st Cir. 1971)... 19

United States v. Fuccillo, 808 F.2d 173 (1st Cir.), cert.

epee, SEZ O75. TRS TIGRE so co ce ecw na cceansass 16, 17

United States v. Gros, 824 F.2d 1487 (6th Cir. 1987) ..... 14

United States v. Hershenow, 680 F.2d 847 (ist Cir.

WEY ed cra AE Lia etre Ea ce Ae ee Ge aa 8 tees Brace 9, 10

United States v. Hillyard, 677 F.2d 1336 (9th Cir. 1982) .. 11

United States v. Jennings, 471 F.2d 1310 (2d Cir.), cert.

co Me RO To re eee 21

United States v. Kail, 804 F.2d 441 (8th Cir. 1986) ....... 10

United States v. Kepner, 843 F.2d 755 (3d Cir. 1988)... .. 14

United States v. Leary, 846 F.2d 592 (10th Cir. 1988) .... 17

United States v. Leon, 468 U.S. 897 (1984)... 0.0.0... 7; 34, Ss

14, 15, 16, 17

Cases — Continued: Page

United States v. Luk, 859 F.2d 667 (9th Cir. 1988) ....... 14, 15

United States v. McClintock, 748 F.2d 1278 (9th Cir.

1984), cert. denied, 474 U.S. 822 (1985) ............... 11

United States v. Michaelian, 803 F.2d 1042 (9th Cir.

Or re er gy ye PA ere ee 13, 14, 16 ;

United States v. Nichols, 820 F.2d 508 (Ist Cir. 1987) .... 21

United States v. Offices Known as 50 State Distributing

Co., 708 F.2d 1371 (9th Cir. 1983), cert. denied, 465

th oT, we ene rE re ere 11

United States ¥- Rao, 394 F.2d 354 (2d Cir.), cert. denied,

(Gtk Sf) ren etree ree 21

United States v. Rengifo, 789 F.2d 975 (1st Cir. 1986) .... 21

United States v. Sae-Chua, 725 F.2d 530 (9th Cir. 1984) .. 21

United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986) .. 10, 11

United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970) .. 21

United States v. Sovereign News Co., 690 F.2d 569 (6th

Cr Se eile kp che A ee ok SAGAR ERED 10

United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986) ... 15

United States v. Warren, 594 F.2d 1046 (Sth Cir. 1979)... 21

United States v. Washington, 797 F.2d 1461 (9th Cir.

| ee rr ee re ea rem e 15

United States v. Webb, 816 F.2d 1263 (8th Cir. 1987) .... 22

United States v. Weinstein, 762 F.2d 1522 (11th Cir.

1985), cert. denied, 475 U.S. 1110 (1986) ............. 14

United States v. Wuagneux, 683 F.2d 1343 (11th Cir.

1982), cert. denied, 464 U.S. 814(1983) .............. 13, 14

Williams v. United States, 338 F.2d 530 (D.C. Cir.

eee re rnny ree in ae ery ane ee < 22

Constitution, statutes, and rule:

U.S. Const. Amend. IV (Double Jeopardy Clause) ...... 22

Racketeer Influenced and Corrupt Organizations Act,

Pa SI 6 oh a a ches kaa ee bAR Sa were

>

Pe Ra oye tne be te AS ye ee 6

3 ee S| PPP eR Tee CRT Te eee 23

In the Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 88-1889

JAMES F. NORTON, ET AL., PETITIONERS

vy;

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-22) is

reported at 867 F.2d 1354. An earlier opinion of the court

of appeals (Pet. App. 36-44) is reported at 749 F.2d 1477.

The district court’s order on petitioner’s motion to sup-

press (Pet. App. 26-33) and its order on remand (Pet.

App. 23-25) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March, 16, 1989. The petition for a writ of certiorari was

filed on May 15, 1989. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

STATEMENT

On June 3, 1981, a federal grand jury in the United

States District Court for the Southern District of Florida

issued an indictment charging petitioners and 12 co-

defendants with conspiring to conduct the affairs of a

labor union through a pattern of racketeering activities, in

violation of the Racketeer Influenced and Corrupt Organi-

zations Act (RICO), 18 U.S.C. 1962(d). Petitioners moved

to suppress business records seized pursuant to two search

warrants, and the district court granted their motion. On

the government’s appeal, the court of appeals reversed the

suppression order, 749 F.2d 1477, and this Court denied

certiorari, 474 U.S. 949 (1985). A jury trial resulted in a

conviction of each of the four petitioners.' Each petitioner

was sentenced to ten years’ imprisonment. The court of

appeals affirmed. Pet. App. 1-22.

1. The government’s proof at trial was summarized by

the court below. Pet. App. 2-3. In brief, the Laborers’ In-

ternational Union (Laborers) and its affiliated local

unions in Chicago and Miami established various em-

ployee benefit plans, including the Chicago Trust Fund

and the Southeast Trust Fund. In 1970, Laborers an-

nounced plans to provide dental care services to union

members. Consultants & Administrators, Inc. (C&A), a

Chicago-based corporation, was formed to provide those

services. C&A did so by contracting with various labor

unions to provide medical, dental, and vision services to

union members through a network of clinics located in

Chicago and South Florida. Petitioner Norton was presi-

' An earlier trial ended in a mistrial due to the exposure of the jury

to extraneous materials during deliberations. A separate tr al resulted

in the conviction of eight other co-defendants; those convictions were

upheld on appeal. United States v. Caporale, 806 F.2d .487 (11th

Cir.), cert. denied, 483 U.S. 1021 (1987).

dent of C&A. Petitioner DiFranco, a dentist, and peti-

tioner Fosco, who purportedly handled sales and public

relations, were vice-presidents of C&A. Angelo Fosco

(petitioner Fosco’s father) and James Caporale were union

representatives and co-defendants. They exerted their in-

fluence to ensure that C&A obtained the contract for den-

tal services in exchange for kickbacks made to them

through C&A. The kickback funds were generated by in-

flating petitioners’ salaries (other than that of petitioner

Pinckard); the excess cash was then funneled through

Daniel Milano, Sr., another owner of C&A, to Angelo

Fosco and James Caporale.

In 1972, the operation expanded to Southeast Florida

when C&A obtained a similar contract to provide dental

care to union members. As before, C&A made kickback

payments to various union representatives in connection

with the contract. Regular payoffs were made from 1973

to 1977. Pet. App. 2.

In 1974, the Chicago dental services contract was

amended to include vision services and dental services for

the dependents of union members. Union representative

and co-defendant Alfred Pilotto arranged for C&A to be

awarded the expanded contract in return for a kickback of

ten per cent of C&A’s increased premiums. Petitioner

Pinckard (Pilotto’s son-in-law) acted as a conduit for these

illegal payments from C&A to the union officials. Pet.

App. 2-3.

2. The government’s investigation of petitioners’ acti-

vities is recounted in the affidavit of FBI Special Agent

James Wagner, which was submitted in support of the

government’s applications for the search warrants in this

case. Agent Wagner’s affidavit was primarily based on in-

formation provided by Daniel Milano, Jr., who had re-

4

cently resigned as secretary-treasurer of C&A. Afft. paras.

la, Ib.

According to Agent Wagner’s affidavit, Milano stated

that his father, Daniel Milano, Sr., the executive vice-

president of C&A, had sole authority to bid on C&A’s be-

half on prospective union contracts. Afft. paras. la, If.

Although all bids were supposedly sealed, Daniel Milano,

Sr., customarily met with co-defendant union leaders

Alfred Pilotte and Angelo Fosco before bidding on any

contract. Afft. para. 1f.? Pilotto provided Daniel Milano,

Sr., with information regarding competing bids, and both

Pilotto and Fosco gave prior approval to all of C&A’s

bids. /bid. As a result of this procedure, Daniel Milano,

Sr., never authorized a bid that had not been pre-approved

and never submitted a bid on a union health care contract

that was not accepted. /bid. In return for that favorable

treatment, C&A regularly provided kickbacks to various

labor officials. Afft. para. 1g.

Two entities — Pinckard and Associates, Inc., which was

operated by petitioner Pinckard, and Fortune Services,

Inc. — were incorporated to help divert revenue from C&A

to finance the kickbacks. Afft. para. le. Although both

entities were purportedly responsible for verifying the eli-

gibility of persons receiving health services from C&A

under its union contracts, Afft. para. Id, Fortune Services

in fact performed no functions whatsoever, and Pinckard

and Associates merely placed calls to the union to verify

eligibility. Afft. para. le. Neither Fortune Services nor

2 Pilotto was both president of the Laborers Local 5 in Chicago and

vice-president of the Chicago Laborers District Council. Angelo

Fosco was vice-president of the Laborers International Union of

North America.

ERR

5

Pinckard and Associates had any corporate activities other

than their contracts with C&A. Afft. para. 1d.?

Pursuant to an agreement between Daniel Milano, Sr.,

and Pilotto, Pinckard and Associates billed C&A for ten

per cent of C&A’s gross monthly receipts on its union con-

tracts, while Fortune Services billed C&A for 15 per cent

of C&A’s gross receipts. Afft. paras. lh, 1j. With respect

to Pinckard’s billing, Daniel Milano, Jr., furnished peti-

tioner Pinckard with the figure for C&A’s gross monthly

receipts in the Chicago area, which averaged $200,000, in

advance of the preparation of Pinckard’s bill. Afft. para.

lh. With respect to Fortune Services, Daniel Milano, Jr.,

personally drew C&A checks for the monthly payments.

In turn, Daniel Milano, Sr., delivered the checks to co-

defendant Seymour Gopman’s Miami law office, from

which Fortune Services was run. Afft. para. 1).

In addition to the diversion of funds through Pinckard

and Associates and Fortune Services, all C&A officers

were required to give $1,000 of their salaries to Daniel

Milano, Sr., each month. Daniel Milano, Sr., collected the

money in cash at the beginning of each month and kept it

in envelopes in the drawer of his desk. Thereafter, Daniel

Milano, Sr., distributed the cash to co-defendant union

leaders Pilotto, Fosco, Dominick Senese, and Caporale.

Afft. para. Ik.

Based on the information obtained from Daniel Milano,

Jr., about the kickback scheme, the government decided

to try to obtain access to the records of C&A and Pinckard

and Associates. The decision was made to conduct a

search of the premises of C&A and Pinckard and Asso-

> Until June 1976, petitioner Pinckard operated Pinckard and

Associates out of C&A’s offices. Pinckard and Associates later moved

to separate Offices in the same building that housed C&A. Afft. para.

li.

6

clates, rather than issue subpoenas, because Daniel

Milano, Jr., had told Agent Wagner that there was a

“strong likelihood” that the records of the two companies

would be destroyed or altered if subpoenas were used.

Agent Wagner also explained that he believed it was neces-

sary to examine all the records of C&A and Pinckard and

Associates in order, by comparing their books and records

with the records available through banks and other busi-

nesses, to determine how the kickback money was gener-

ated through C&A. 2/25/82 Tr. 17; 1/31/86 Tr. 18-19.

Accordingly, Agent Wagner and two attorneys from the

Chicago Organized Crime Strike Force prepared an affi-

davit to accompany an application for warrants to search

C&A and Pinckard and Associates. 2/26/82 Tr. 67;

1/31/86 Tr. 29-31. Thereafter, a federal magistrate issued

separate search warrants authorizing the search of the ad-

ministrative offices of C&A and Pinckard and Associates.

Pet. App. 53-54, 55-56.4 Before the warrants were exe-

cuted, the federal agents examined Agent Wagner’s affi-

davit and twice were briefed by Agent Wagner about both

the information in the affidavit and the scope of the

searches authorized by the warrants. 2/26/82 Tr. 63-64,

66, 100-101.

After searching the C&A file room and the office space

occupied by Daniel Milano Sr., Daniel Milano, Jr., and

petitioners Norton, Fosco, and DiFranco, the agents

* The warrant for the search of C&A authorized the agents to seize

“all corporate records of Consultants and Administrators, Inc.; a

black vinyl book * * * containing copies of contracts, correspond-

ence, bank statements and receipts; [and] envelopes and United States

currency which are evidence and instrumentalities of the offense set

forth in [18 U.S.C.] 1954.” Pet. App. 53-54. The warrant for the

search of Pinckard and Associates authorized the agents to seize “all

corporate records” of that corporation “which are evidence and in-

strumentalities of the offense set forth in [18 U.S.C.] 1954.” Pet. App

§4

seized approximately 18 boxes of documents. 2/25/82 Tr.

41-43. In addition, the agents seized from Daniel Milano,

Sr.’s, desk drawer seven envelopes containing a total of

$12,460 in cash. In executing the C&A search warrant, the

agents neither searched for nor seized the records of any

other business entity. Jd. at 37, 43-44, 53-56, 58-59;

2/26/82 Tr. 132. Thus, the agents did not seize records of

other corporations that had been tied into their investiga-

tion that might have been on the premises. /bid.’ The

agents also seized a smaller quantity of records from the

office space in the same building that was occupied by

petitioner Pinckard.

3. Ina pretrial ruling, the district court suppressed all

documents seized during the October 6, 1976, searches of

C&A and Pinckard and Associates. Pet. App. 26-33. The

court found that the supporting affidavit “clearly estab-

lishe[d] probable cause to search for certain kinds of cor-

porate records,” id. at 29, but the court also held that the

authorization to seize “all corporate records” of C&A and

Pinckard and Associates was “unconstitutionally general.”

Id. at 32.

The court of appeals reversed. Pet. App. 36-44. The

court accepted for purposes of the appeal the district

court’s ruling that the warrants were insufficiently spe-

cific, id. at 39-40 n.3, but held that “[{o]n the facts con-

sidered by the district court at the suppression hearing,”

the case fit within the good faith exception to the exclu-

sionary rule articulated in United States v. Leon, 468 U.S.

897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981

5 Two file cabinets in the C&A file room contained records of other

corporate entities. 2/26/82 Tr. 199-200. After a cursory inspection of

the file cabinets to ensure that they contained no C&A records, the

agents said that they were not interested in the files and did not seize

them. /d. at 200-210.

8

(1984). Pet. App. 42.° The court of appeals remanded the

case for an evidentiary hearing on that issue. /d. at 43-44.’

4. Onremand, the district court found that the parties

did not adduce any new facts on the good faith issue. Pet.

App. 23. Accordingly, in light of the court of appeals’

observation that the evidence at the initial suppression

hearing showed that the agents were acting in good faith,

the district court held that the documents were admissible

under Leon and Sheppard. Id. at 24.

5. The court of appeals affirmed. Pet. App. 1-22. It

held that there was “[mJore than adequate suppo’t” for the

¢ The court of appeals explained that the agents “ ‘took every step

that could reasonably be expected of them.’ As in Sheppard, the

agents submitted a detailed affidavit to a magistrate in order to secure

the search warrants. The affidavit alleged a pervasive fraud that had

resulted in the incorporation of a sham business to channel kickback

monies to labor officials. ‘n addition, the affidavit was reviewed by

several attorneys in the U.S. Attorney’s office before it was presented

to a magistrate, who found probable cause and issued the warrants.

* * * Moreover, the warrants’ authorization to seize ‘all corporate

records’ does not transgress the limitation on the good faith exception

described by the Supreme Court as cases involving warrants ‘so facial-

ly deficient —i.e., 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.’ Arguably, ‘all corporate records’ is signifi-

cantly more general than the ‘any controlled substance’ language con-

tained in the Sheppard warrant. Even so, this is not dispositive. The

question here is not the legal validity of the warrant but the reason-

ableness of the officers’ reliance on it.” Pet. App. 42 (citations

omitted).

’ The government also argued that the documents seized during the

search were admissible because subpoenas that had been separately

issued for the documents provided an “independent source” for their

acquisition and showed that the documents would inevitably have

been discovered regardless of whether the searches had been con-

ducted. Gov’t C.A. Br. 27-28, United States v. Accardo, 749 F.2d

1477 (11th Cir.), cert. denied, 474 U.S. 949 (1985). The court of ap-

peals did not find it necessary to address that argument. Pet. App. 38

n.1.

9

district court’s determination that the agents’ reliance on

the warrants was justifiable. Jd. at 8. As the court of ap-

peals noted, “the FBI Agent who applied for both war-

rants testified that he believed he needed all of C&A’s and

[Pinckard and Associates’] corporate records * * * to

verify the kickback scheme.” Jd. at 8-9. “Because this in-

vestigation required the authorities to piece together a

‘paper puzzle’ given the permeative character of the fraud

involved,” ie court found that “the agent’s belief was ob-

jectively reasonable.” Jd. at 9.

ARGUMENT

1. Petitioners challenge the court of appeals’ ruling

that the agents who executed the search warrants for C&A

and Pinckard and Associates had an objectively reason-

able belief that the warrants were valid because they could

reasonably have believed that it was necessary to examine

all of the records of those two companies in order to

discover the full scope of petitioners’ kickback scheme.

That ruling presents no issue of general importance and

thus does not warrant review by this Court.

a. The warrant in this case was not unconstitutionally

overbroad. It is well settled that where the underlying affi-

davit establishes sufficiently broad probable cause, the

warrant may authorize a comparably broad search and

seizure. See United States v. Hershenow, 680 F.2d 847,

851 (1st Cir. 1982) (“[t]he particularity and probable cause

requirements of the Fourth Amendment are * * * closely

related”); see also Jn re Impounded Case (Law Firm), 840

F.2d 196, 200 (3d Cir. 1988); United States v. Christine,

687 F.2d 749, 758 (3d Cir. 1982). Courts have accordingly

approved property descriptions in search warrants that

were as broad in scope as the probable cause demonstra-

tion in the supporting affidavit. In addition, since the

10

scope of some forms of criminal activity can be detected

only by piecing together myriad financial documents and

since officers often do not know in advance what docu-

ments they may find, the courts have flexibly construed

the particularity requirement to allow the seizure of

generically described records.8

As the court below found, Pet. App. 43, this case in-

volved precisely the “type of complex financial fraud” that

“has been held to justify a more flexible reading of the

fourth amendment particularity requirement.” The infor-

mation available to Agent Wagner came from an officer

of C&A and the son of its vice-president. That informa-

tion showed that all of C&A’s bids for health benefit serv-

ices were made with approval of the union officials, that

the bids were prepared with the aid of information about

other bidders, and that C&A’s bids were invariably ac-

cepted. Afft. para. If. In addition, the affidavit showed

that Pinckard and Associates (like Fortune Services) was a

§ See, e.g., In re Search of 4801 Fyler Ave., No. 88-1573 (8th Cir.

July 13, 1989), slip op. 9 (any “correspondence, records, files, works

orders, logs, or other documents” relating to hazardous wastes);

United States v. Brown, 832 F.2d 991 (7th Cir. 1987) (seizure of

generically described business records relating to the submission of

fraudulent insurance claims), cert. denied, 108 S. Ct. 1084 (1988);

United States v. Kail, 804 F.2d 441 (8th Cir. 1986) (upholding a war-

rant for almost all of the defendant’s business records); United States

v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986); United States v.

Sovereign News Co., 690 F.2d 569, 574, 576-577 (6th Cir. 1982)

(seizure of generic business records “ ‘reflecting the importation,

receipt, and shipment’ of seizable [i.e., obscene] publications as well

as ‘documents reflecting the corporate structure of Sovereign News

Company and any of its affiliate companies’ ”); United States v. Her-

shenow, 680 F.2d 847, 852-853 (Ist Cir. 1982) (seizure of “all accident

patient files”); United States v. Brien, 617 F.2d 299, 306 (Ist Cir.) (ap-

proving a warrant for most of the defendant’s business records), cert.

denied, 446 U.S. 919 (1980).

11

sham corporation that had been incorporated for the sole

purpose of serving as a conduit for the money received by

petitioners in their kickback scheme. C&A, whose officers

were parties to the scheme, was the central focus of the

kickback operation. Daniel Milano, Sr., masterminded

the scheme. He solicited information from local union

leaders regarding competing (and supposedly secret) bids,

and he agreed to pay a kickback to the union leaders for

the information. The kickback was based on a fixed per-

centage of C&A’s gross receipts from the union contracts.

And Pinckard and Associates conducted at least some of

its dealings on C&A’s premises out of space lent to Pinck-

ard and Associates by C&A. Moreover, Daniel Milano, Jr.,

told Agent Wagner that there was a “strong likelihood” that

C&A would either destroy or alter its records if they were

subpoenaed. Agent Wagner was therefore entitled to infer

that all of the records would constitute evidence of the

operation of the kickback scheme, as well as C&A’s close

participation in it, and also that any records not seized

during the search of C&A might thereafter “disappear.”

Thus, the agents cannot be faulted for believing that, in

light of the “permeative character of the fraud involved” in

this case, all the records of C&A and Pinckard and Asso-

ciates were material and needed to be seized. Jd. at 9.°

b. Even if the warrant in this case was overly broad,

the agents acted in good faith in obtaining the warrant,

and the evidence was therefore properly held admissible

9 See United States v. Sawyer, 799 F.2d at 1508 (evidence of per-

vasive fraud justifies a broad warrant); United States v. McClintock,

748 F.2d 1278, 1283 (9th Cir. 1984) (same), cert. denied, 474 U.S. 822

(1985); United States v. Offices Known as 50 State Distributing Co.,

708 F.2d 1371, 1374-1376 (9th Cir. 1983) (same), cert. denied, 465

U.S. 1021 (1984); United States v. Hillyard, 677 F.2d 1336, 1339-1340

(9th Cir. 1982) (same); National City Trading Corp. v. United States,

635 F.2d 1020, 1026 (2d Cir. 1980).

12

under this Court’s decisions in United States v. Leon,

supra, and Massachusetts v. Sheppard, supra. \n Leon,

this Court held that the exclusionary rule “cannot be ex-

pected, and should not be applied, to deter objectively

reasonable law enforcement activity.” 468 U.S. at 919.

That is particularly true, the Court noted, “when an of-

ficer acting with objective good faith has obtained a search

warrant from a judge or a magistrate and acted within its

scope.” Id. at 920. The Court reasoned that, in such cir-

cumstances, the deterrent value of the exclusionary rule is

vitiated by the fact that an officer cannot be expected to

question the magistrate’s probable-cause determination or

his judgment that the form of the search warrant is tech-

nically sufficient. Jd. at 921.

This Court applied that exception in the companion case

of Massachusetts v. Sheppard, supra, to a search warrant

that insufficiently described the items to be seized. In

Sheppard, the trial judge suppressed evidence seized dur-

ing the execution of a search warrant that incorrectly iden-

tified the items to be seized as evidence of a narcotics

transaction, rather than a murder. Relying on Leon, this

Court reversed, emphasizing that the officers had demon-

strated their good faith by submitting an affidavit to a

judge and thereafter relying on the judge’s determination

that the warrant he issued was sufficiently particularized.

468 U.S. at 989-991. See also J/linois v. Krull, 480 U.S. 340

(1987) (applying Leon to a state law, later held invalid,

that authorized a warrantless search, even though the

statute could have been more narrowly drawn).

The same considerations that prompted this Court to

apply the good faith exception in Leon, Sheppard, and

Krull are also present here. As the courts below concluded,

it was “not so obvious” that the property descriptions in

these two warrants were unconstitutionally overbroad on

the facts of this case. The requirement that a warrant con-

|

13

tain a particularized description of the property to be

searched includes “a practical margin of flexibility” de-

pending on the facts of each case. United States v.

Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982) (collect-

ing cases), cert. denied, 464 U.S. 814 (1983). That is

especially true in cases “involving complex financial trans-

actions and widespread allegations of various types of

fraud.” Ibid. See also United States v. Abrams, 615 F.2d

541, 548 (1st Cir. 1980) (Campbell, J., concurring) (“[t}he

need for particularization gives rise to a dilemma in fraud

investigations,” because the agents “usually do not, and

often cannot, know in advance precisely what they will

find when they search through files pursuant to a war-

rant.”). As this Court has recognized with respect to the

particularity requirement, “the complexity of an illegal

scheme may not be used as a shield to avoid detection

when the State has demonstrated probable cause to believe

that * * * evidence of [a] crime is in the suspect’s posses-

sion.” Andresen v. Maryland, 427 U.S. 463, 480-481 n.10

(1976).

In this case, the agents “took every step that could rea-

sonably be expected of them.” Sheppard, 468 U.S. at 989.

Agent Wagner prepared an extensive affidavit that de-

tailed a pervasive fraudulent scheme and that, as the dis-

trict court noted, Pet. App. 29, “clearly establishe[d]”

probable cause to search for a broad range of corporate

documents. Thereafter, the affidavit was reviewed by two

government attorneys before it was submitted to the

magistrate. And the magistrate found probable cause to

justify the searches and approved the adequacy of the de-

scription of the property to be seized. See, e.g., United

States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir. 1986);

United States v. Fama, 758 F.2d 834, 837 (2d Cir. 1985).

Moreover, even if the unattached affidavit cannot be used

to cure any possible overbreadth in the warrants, the

14

agents’ use of the extensive affidavit as the basis for the

pre-search briefings should be considered as evidence of

their good faith under Leon. Cf. United States v. Luk, 859

F.2d 667, 677 (9th Cir. 1988). See also United States v.

Wuagneux, 683 F.2d at 1351 n.6. Finally, the agents evi-

denced their good faith by confining the scope of their

searches to the parameters of the warrants and declining to

seize records of other corporate entities found on the

premises. See United States v. Luk, 859 F.2d at 677-678.

In short, the two 1976 warrants in this case were not so

“facially deficient” that the executing officers could not

have reasonably presumed that the warrants were valid.

Leon, 468 U.S. at 923. See United States v. Luk, supra;

United States v. Kepner, 843 F.2d 755, 763-764 (3d Cir.

1988); United States v. Diaz, 841 F.2d 1, 6 (1st Cir. 1988);

United States v. Gros, 824 F.2d 1487 (6th Cir. 1987);

United States v. Buck, 813 F.2d 588, 592-593 (2d Cir.),

cert. denied, 108 S. Ct. 167 (1987); United States v.

Michaelian, 803 F.2d at 1046-1047; United States v.

Weinstein, 762 F.2d 1522, 1531 (11th Cir. 1985), cert.

denied, 475 U.S. 1110 (1986).

Because the district court found and the court of ap-

peals assumed that the two warrants were overbroad, peti-

tioners contend that the reasonable mistake exception

adopted in Leon is inapplicable in this case. Pet. 9-18.

That argument reads too much into Leon. Leon held that

suppression is appropriate when a search warrant is so

facially deficient in failing to particularize the things to be

seized that the executing officer could not reasonably pre-

sume that the warrant is valid. 468 U.S. at 923. But Leon

did not hold that the good faith exception is inapplicable

simply because a warrant is later found to be overbroad.

Instead, whether the exception will apply “depend[s] on

the circumstances of the particular case.” /bid. In this

case, the permeative character of the fraud and the need to

15

prevent the possible destruction of C&A’s and Pinckard

and Associates’ records justified Agent Wagner’s belief

that all of their records were relevant and therefore that

the two warrants were not overbroad. The court of ap-

peals” ruling therefore is consistent with the inquiry re-

quired by Leon.

Petitioners also contend that the Ninth and First Cir-

cuits have ruled that the exception adopted in Leon is in-

applicable to overbroad search warrants “as a matter of

law.” Pet. 10. That claim is mistaken. Although those

courts may have followed such an approach at one time,'®

subsequent decisions by those courts have shown that they

examine this question on the facts of each case and that

they have held that Leon is not inapplicable simply be-

cause a warrant is later found to be overbroad.

For example, in United States v. Luk, 859 F.2d 667 (9th

Cir. 1988), the warrant, which authorized law enforce-

ment officers to seize a broad range of corporate docu-

ments stored at the defendant’s home, was held “uncon-

stitutionally overbroad.” Jd. at 676 & n.6. The court

nevertheless refused to suppress the evidence, noting that

the officers had reasonably relied on the warrant. As the

court explained, the warrant was supported by a 22-page

affidavit that “related the results of an extensive investiga-

tion.” Jd. at 677. Although the affidavit could not cure the

overbroad warrant, the court found that the affidavit was

“evidence of good faith,” because it “provided the particu-

larity that the warrant lacked” and because the officers

'0 As petitioners note (Pet. 10-11 n.7), several Ninth Circuit cases

refused to apply the good faith exception when officers relied on

search warrants later found to be impermissibly general. See United

States v. Dozier, 844 F.2d 701, 708 (1988), cert. denied, 109 S. Ct. 312

(1989); United States v. Spilotro, 800 F.2d 959, 968 (1986); United

States v. Washington, 797 F.2d 1461, 1472-1474 (1986); United States

Vv. Crozier, 777 F.2d 1376, 1381 (1985).

16

relied on the affidavit in conducting their search. Jd. at

677-678.

Likewise, in United States v. Michaelian, 803 F.2d 1042

(9th Cir. 1986), the warrants for a broad range of personal

and business records were found to be impermissibly

general “in light of the lengthy IRS investigation and

detailed knowledge provided [to the agents by certain in-

formants].” Jd. at 1046 n.1. The court of appeals applied

the good faith exception, however, finding that the war-

rants did not “approximate the degree of facial deficiency

which would preclude objective reasonable reliance by

federal agents,” id. at 1047, even though the warrants

could have been more specific. See also Center Art

Galleries— Hawaii, Inc. v. United States, 875 F.2d 747,

753 (9th Cir. 1989) (noting that Leon applies unless “[t}he

warrants were so overbroad that * * * no agent could

reasonably rely on them”).

The First Circuit has followed a similar course. In

United States v. Fuccillo, 808 F.2d 173, cert. denied, 482

U.S. 905 (1987), that court refused to apply the good faith

exception on two grounds: the agents who executed the

warrant exceeded the scope of the warrant (by seizing

men’s clothing as well as women’s clothing, even though

the warrant only authorized seizure of the latter), and the

agents did not take “ ‘every step that could reasonably be

expected of them’ ” in describing the items to be seized.

808 F.2d at 177-178 (citation omitted). After Fuccillo,

however, the First Circuit in United States v. Diaz, 841

F.2d 1, 6 (1988), applied Leon in the context of a search

conducted in reliance on a warrant later found to be over-

broad.'' Accordingly, it now appears that the First Cir-

'! Indeed, petitioners acknowledge that “there is now an internal

contlict between the First Circuit’s decisions in Diaz and Fuccillo.”

Pet. 12.

17

cuit, like the Ninth Circuit, examines each case on its facts

and does not regard the Leon doctrine as per se inap-

plicable to overbroad warrants.

Petitioners claim that the Tenth Circuit has held that

Leon is inapplicable to overbroad warrants, but the case

they cite, United States v. Leary, 846 F.2d 592 (1988), did

not adopt any such rule. Leary found overbroad a warrant

that; authorized the seizure of all “records and cor-

respondence” relating to the illegal exportation of arms,

even though the affidavit supporting the warrant disclosed

probable cause as to a single, readily identifiable illegal

transaction. /d. at 600-606. The court noted that the case

“present{ed] a different factual situation” than that in

United States v. Buck, 813 F.2d-at 609-610, where the

court relied on Leon even though the warrant was insuffi-

ciently particularized.'? The court held that the officers

could not reasonably have relied on the warrant in Leary,

because the expansive description of the property to be

seized bore no relationship to the limited probable cause

showing. In so holding, the court did not purport to rule

that officers may not rely in good faith on an overbroad

warrant; it merely held that the officers’ reliance was un-

reasonable on the facts of that case.

Thus, the difference between the result below and the

results in the cases cited by petitioners turns on a differ-

ence in the facts, not a disagreement over the relevant legal

principles. While petitioners are correct that some of post-

Leon decisions of various circuits conflicted at one time

with the approach taken here and in Buck,'? that conflict

'2 Petitioners rely on Buck, along with the decision in this case, as

being in conflict with decisions in the First, Ninth, and Tenth Circuits

Pet. 11.

'3 In our certiorari petition in Fuccillo, we pointed out that the

prior decision in this case and Buck were in conflict with the First Cir

cuit’s decision in Fuccillo and with several Ninth Circuit decisions that

aera eee eee

18

now appears to have abated as the circuits have continued

to address this subject. Subsequent case law has shown

that the First and Ninth Circuits now resolve Leon claims

in this context on a case-by-case basis and have eschewed

any per se rule that officers cannot be found to have rea-

sonably relied on a warrant that is later found to be over-

broad.

2. Petitioners contend (Pet. 19-26) that the district

court’s supplemental charge coerced the jury into return-

ing a guilty verdict. That claim stems from the following

facts:

On the morning of the second day of the jury’s delibera-

tions, juror Robert Larson sent a note to the district court.

In the note, Larson said that, unlike the other 11 jurors, he

had a reasonable doubt as to petitioners’ guilt, and he

asked to be relieved of jury duty because he was uncom-

fortable with the prospect of causing a mistrial. Pet. App.

18-19 & n.11. The district court consulted with defense

counsel about the proper response to the note. Petitioners

moved for a mistrial and opposed giving the jury an A/len

charge.'* Gov't C.A. Br. 54, citing 92 R. 40-47. The

district court denied the defense motion for a mistrial but

agreed not to give an Allen charge. The court then ad-

dressed juror Larson out of the presence of the other

jurors. The court told Larson that he would not be re-

placed by an alternate juror, but also told Larson that he

was “absolutely, unequivocal[lly]” not required to vote

with the majority, “even under duress.” The court then de-

livered a supplemental instruction to the jury in which the

pre-dated Michaelian. 86-1622 Pet. 14-17. We noted that the decision

in Michaelian appeared to be consistent with the majority position

that the good faith exception can be applied to warrants found to be

overbroad. 86-1622 Pet. 16-17.

'4 See Allen v. United States, 164 U.S. 492 (1896).

meerereeeenenmeneee tema

19

court reminded the jurors of their duty to consult with

each other, to deliberate in an effort to reach a unanimous

verdict if it was possible to do so without doing violence to

their individual judgments, and to be willing to reconsider

their views. Pet. App. 19 n.12. The court also emphasized,

however, that the jurors should “not surrender your

honest conviction as to the weight or effect of the evidence

solely because of the opinion of your fellow jurors or for

the mere purpose of returning a verdict.” /bid. Petitioners

renewed their motion for a mistrial, which the district

court denied. Four hours later, the jury returned a guilty

verdict. Pet. App. 21.

Petitioners do not (and could not) claim that the supple-

mental instruction was itself coercive.'* Instead, relying

on Brasfield v. United States, 272 U.S. 448 (1926), peti-

tioners argue that the supplemental instruction was coer-

'S This Court has upheld the use of such supplemental instructions

on four occasions. Lowenfield v. Phelps, 108 S. Ct. 546, 550-551

(1988); Kawakita v. United States, 343 U.S. 717, 744 (1952), affg 190

F.2d 506, 521-528 (9th Cir. 1951); Lias v. United States, 284 U.S. 584,

affg 51 F.2d 215, 218 (4th Cir. 1931); Allen v. United States, supra.

Every circuit has upheld the use of some form of a supplemental jury

instruction. Lowenfield v. Phelps, 108 S. Ct. at 551 n.1 (collecting

cases). Moreover, the supplemental instruction given in this case was

mild and balanced. It directed the jurors to make an individual judg-

ment on the guilt or innocence of each defendant. It was addressed to

all of the jurors, not simply to juror Larson. It therefore did not run

afoul of the primary criticism of the A//en charge —that it is directed

to jurors in the minority. See, e.g., United States vy. Flannery, 451

F.2d 880, 883 (Ist Cir. 1971). Moreover, the charge reminded the

jurors of their responsibility to listen to one another, to be open-

minded and impartial, and to reach a verdict if possible. And it

directed the jurors not to abandon their individual judgment in so do-

ing. That instruction was not coercive. See Lowenfield, 108 S. Ct. at

§51. That is particularly true since the court had previously told juror

Larson in no uncertain terms that he “absolutely” and “unequivo-

ca[lly]” was not required to vote with the majority

20

cive because the district court was aware of the jury’s

numerical division as a result of juror Larson’s note. This

case, however, is materially different from Brasfield.

There, the trial judge asked the foreman how the jury

stood numerically. Upon learning that the jury stood nine

to three, the trial court delivered an A/d/en charge. This

Court reversed, holding that a trial court should not ask a

deadlocked jury for its numerical division, since that in-

quiry is potentially coercive and “serves no useful purpose

that cannot be attained by questions not requiring the jury

to reveal the nature or extent of its division.” 272 U.S. at

450.

In this case, by contrast, the trial court did not ask the

jury where it stood on the defendants’ guilt or innocence.

Juror Larson volunteered that information in the note he

sent to the judge asking for guidance. That difference is

critical. Underlying the ruling in Brasfield is the belief that

the combination of a trial court’s inquiry into the jury’s

numerical division and the use of a traditional Allen

charge (/.e., one that focuses on the jurors in the minority)

might coerce those jurors in the minority to abandon their

views simply to achieve unanimity. That risk was not pres-

ent here. In response to juror Larson’s note, the court told

Larson in the strongest possible terms that he was under

no obligation to abandon his honestly held views, and

petitioners do not challenge those remarks. The court’s

subsequent use of a modified A//en charge, therefore, was

not likely to have intimidated Larson. Indeed, the fact that

the court gave the charge to the entire jury panel could

well have eased Larson’s mind by formally instructing the

other jurors that Larson was under no obligation to “sur-

render [his] honest conviction * * * solely because of the

opinion of [his] fellow jurors or for the mere purpose of

returning a verdict.” Pet. App. 19 n.12. Finally, the fact

that the jury deliberated for approximately four hours

21

—

after the trial court gave the instruction is evidence that the

instruction did not coerce juror Larson into abandoning

his views.'® For similar reasons, the courts of appeals have

held that the rule of automatic reversal adopted in

Brasfield does not apply when‘information regarding the

jury’s division is not solicited by the judge, but is volun-

teered by the jurors.!’

There is no conflict among'the circuits on this issue.

Petitioners maintain (Pet. 20-21)-that the decision below

conflicts with the Ninth Circuft’s decision in United States

v. Sae-Chua, 725 F.2d 530 (1984), but that decision is dis-

tinguishable. There, the jury foreman revealed to the court

that a majority favored guilt, but that one juror favored

acquittal. After polling the jury on the question whether

further deliberations would be useful, the district court

gave a modified Allen charge. 725 F.2d at 531. In re-

versing the conviction, the Ninth Circuit found that, under

the circumstances of that case, the combination of the

'6 See, e.g., United States v. Nichols, 820 F.2d 508, 512 (Ist Cir.

1987) (one-hour gap not coercive); United States v. Bailey, 468 F.2d

652, 664 (1972), aff'd, 480 F.2d 518 (Sth Cir. 1973) (en banc)

(90-minute gap not coercive). Compare Lowenfield v. Phelps, 108 S.

Ct. at 552 (30-minute gap raised “possibility of coercion”).

'7 E.g., United States v. Rengifo, 789 F.2d 975, 985 (1st Cir. 1986);

United States v. Akbar, 698 F.2d 378, 380 (9th Cir.), cert. denied, 461

U.S. 959 (1983); United States v. Cook, 663 F.2d 808, 809 n.3 (8th

Cir. 1981); United States v. Warren, 594 F.2d 1046, 1049 n.3 (Sth Cir.

1979); United States v. Diggs, 522 F.2d 1310, 1322 (D.C. Cir. 1975),

cert. denied, 429 U.S. 852 (1976); United States v. Jennings, 471 F.2d

1310, 1314 (2d Cir.), cert. denied, 411 U.S. 935 (1973); Gafford v.

Warden, 434 F.2d 318, 319 (10th Cir. 1970); United States v. Sawyers,

423 F.2d 1335, 1340-1341 (4th Cir. 1970); Sanders v. United States,

415 F.2d 621, 629, 631-632 (Sth Cir. 1969), cert. denied, 397 U.S. 976

(1970); United States v. Rao, 394 F.2d 354, 356 (2d Cir.), cert. denied,

393 U.S. 845 (1968); Bowen v. United States, 153 F.2d 747, 752 (8th

Cir.), cert. denied, 328 U.S. 835 (1946).

22

foreman’s note and the poll of the jury tended to identify

and isolate the sole dissenter, and that the modified Allen

charge was likely to coerce that juror. /d. at 532. By con-

trast, in this case it was juror Larson himself who volun-

teered both the jury’s division and his status as the lone

dissenter, and the court’s supplemental instruction simply

reaffirmed what the court had already made clear to Lar-

son — that he was not required to abandon his sincere con-

victions.'* Lowenfield v. Phelps, 108 S. Ct. 546, 552

(1988), held that the coercive effect of a trial court’s ac-

tions must be assessed on a case-by-case basis.'9 As in

'€ To the extent that Sae-Chua can be read to have criticized the

district court’s inquiry into the usefulness of further deliberations by

the jury, rather than into its numerical division, that criticism is no

longer valid after Lowenfield, which distinguished such an inquiry

from the one prohibited by Brasfield. 108 S. Ct. at 552.

'9 The remaining cases cited by petitioner or the court below are in-

apposite. Cornell v. Iowa, 628 F.2d 1044 (8th Cir. 1980), cert. denied,

449 U.S. 1126 (1981), was a federal habeas corpus proceeding. The

court held that the state trial court’s inquiry into the jury’s division

followed by the use of an Allen charge was not unconstitutionally

coercive on the facts of that case. 628 F.2d at 1047-1048. In Holt v.

Wyrick, 649 F.2d 543 (8th Cir. 1981), another federal habeas corpus

proceeding, the state trial court declared a mistrial after the foreman,

in response to an ambiguous inquiry from the trial judge, disclosed the

jury’s numerical division. 649 F.2d at 550-551 & n.9. The court held

that the retrial did not violate the Double Jeopardy Clause. /d. at

551-552. The court did not decide whether the state trial court’s ac-

tions were coercive. In United States v. Webb, 816 F.2d 1263 (8th Cir.

1987), the district court asked the foreman for the jury’s division and

then gave a modified A//en charge, and the jury returned a verdict of

guilty 15 minutes later. The court held that the totality of the circum-

stances required reversal. 816 F.2d at 1267. Finally, in Williams v.

United States, 338 F.2d 530, 531 (D.C. Cir. 1964), the district court

asked the foreman whether there was “ ‘a clear minority’ ” after the

foreman asked the court, “ ‘Can the [two] alternate jurors replace the

minority voters?’ ” The court of appeals found that, under the circum-

Lowenfield. the facts in this case do not warrant an in-

ference of coercion.?°

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR

Assistant Attorney General

ROBERT J. ERICKSON

Attorney

JULY 1989

stances, the trial court’s inquiry was similar to the type of inquiry pro-

hibited by Brasfield. That case is distinguishable for the reasons given

in the text.

20 Petitioners also contend (Pet. 23-24) that the trial judge should

have questioned juror Larson regarding the source of the “duress,”

but as the court of appeals noted, Pet. App. 22, the trial judge correct-

ly decided not to intrude into the jurors’ thought processes. See

Tanner v. United States, 483 U.S. 107, 116-127 (1987); Fed. R. Evid.

606(b).

GOVERNMENT PRINTING OFFICE 1989— 241-099/0( 376