Petition — Migely v. United States

Supreme Court of tixe United States.

OcrosBer Term, 1978.

No. 78-17 86

WILLIAM GODFREY MIGELY,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Nancy GERTNER,

SILVERGLATE, SHAPIRO & GERTNER,

33 Broad Street,

Boston, Massachusetts 02109.

(617) 723-2624

Marcus S. Tope,

360 Pine Street, ~

Top Floor Suite,

San Francisco, California 94104.

(415) 421-6140

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

In the

Supreme Court of the United States.

Ocroser TerM, 1978.

No.

WILLIAM GODFREY MIGELY,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

The petitioner respectfully requests that a writ of certiorari

issue to review the judgment and opinion of the United States

Court of Appeals for the First Circuit entered in this case on

April 18, 1979.

Opinion Below.

The opinion of the United States Court of Appeals for the

First Circuit has not been officially reported. The court’s

opinion is set forth in the Appendix, infra.

2

Jurisdiction.

The judgment of the United States Court of Appeals for the

First Circuit was entered on April 18, 1979. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254.

Question Presented.

Whether Rule 41(e) of the Federal Rules of Criminal Pro-

cedure requires an evidentiary hearing on a motion to suppress

where the defendant has shown a reasonable basis for the con-

clusion that evidence in the Government’s possession derived

from an unlawful mail cover or an unlawful search.

Statutes and Regulations Involved.

This case involves an interpretation of Rule 41(e) and the

precepts of the Fourth Amendment to the United States Con-

stitution.

FourtH AMENDMENT.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable search-

es and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

3

FEDERAL RULES OF CRIMINAL ProcepuRE, RULE 41.

(e) Motion for return of property. A person aggrieved

by an unlawful search and seizure may move the district

court for the district in which the property was seized for

the return of the property on the ground that he is en-

titled to lawful possession of the property which was il-

legally seized. The judge shall receive evidence on any

issue of fact necessary to the decision of the motion. If

the motion is granted the property shall be restored and it

shall not be admissible in evidence at any hearing or trial.

If a motion for return of property is made or comes on for

hearing in the district of trial after an indictment or infor-

mation is filed, it shall be treated also as a motion to sup-

press under Rule 12.

Statement of the Case.

The grand jury for the District of Massachusetts returned a

one-count indictment against petitioner William Godfrey

Migely charging a violation of 18 U.S.C. § 1542 (false state-

ment iti passport application). After pre-trial discovery and

suppression motions, a court trial on stipulated facts was held

before the Honorable A. David Mazzone, United States Dis-

trict Judge, District of Massachusetts. After accepting the

stipulation, the court found the petitioner guilty and sentenced

him to one year in the custody of the Attorney General with

the imposition of the sentence suspended and the petitioner

placed on probation for three years.

Counsel filed certain motions for discovery, for further

discovery, and to suppress, attaching thereto affidavits of

4

counsel and exhibits which alleged the following: On Febru-

ary 13, 1978, Migely appeared in the Passport Office in Boston

and applied for a passport in the name of David Joseph Natta.

He presented a birth certificate and an Oregon driver’s license

in that name. On the very next day, when he returned to pick

up the passport, he was arrested, and, in the course of the

post-arrest interrogation, was questioned repeatedly about one

Dennis Kelly. The speed of the petitioner’s apprehension and

the substance of the post-arrest inquiry raised substantial ques-

tions. The documents alleged that the arresting officers had

gleaned certain information from a computer, and that that

information had long predated Migely’s application for a pass-

port on February 13, 1978. Counsel alleged further that in

1974 the Federal Bureau of Investigation and the Drug En-

forcement Administration had been investigating Dennis Kelly

for possible passport violations involving the use of birth cer-

tificates of deceased infants, and for violations of the drug en-

forcement laws. Petitioner Migely had been referred to in

various reports regarding the Kelly investigation, with his

residence itself being the object of surveillance. During the

course of the Kelly investigation, the F.B.I. and the D.E.A.

had conducted a warrantless and illegal search of a warehouse

rented by Kelly. The Department of Vital Statistics in Port-

land, Oregon, sent, on request, the birth certificate of David

Joseph Natta to Migely’s home on December 11, 1975. Within

a matter of days after the certificate was sent, on December

15, 1975, the Government received a copy of Natta’s death

certificate from the Department of Vital Statistics. Petitioner

alleged that the timing of the Government’s receipt of the Nat-

ta death certificate, coupled with the ongoing investigation of

Dennis Kelly and the existence of at least one unlawful search,

strongly suggested that his residence was also the subject of an

5

unlawful search of the premises, or an unlawful mail cover. *

The Government replied that there had been “no interception

of the mail or examination of letters in connection with this

case,” which response was ruled adequate by a federal magis-

trate. During a subsequent hearing before the judge, the As-

sistant United States Attorney represented that “there were no

surreptitious entries about which the defendant has any stand-

ing tocomplain.” The petitioner then asked for an evidentiary

hearing, with a view toward examining the agents involved

and establishing whether searches or mail covers had in fact

occurred. The court denied that request.

The Reasons for Granting the Writ.

This case presents important issues of federal jurisdiction

and procedure, concerning the administration of criminal

justice in the federal courts, and in particular Rule 41(e) of the

Federal Rules of Criminal Procedure.

The question is what threshold showing must a defendant

make to entitle him to an evidentiary hearing on any disputed

factual matters. To date, no federal circuit court has chosen

to enumerate all the specific factors which a District Court

judge must consider in deciding whether a hearing upon a sup-

pression motion is required. As a result, the situation is con-

fusing, and, in some sense, arbitrary. The majority of federal

circuits apparently have adopted the guidelines set forth in

Cohen v. United States, 378 F. 2d 751, 761 (9th Cir. 1967),

* The term “mail cover” means the covert examination of the outside of a

‘ piece of mail in transit, which, unless properly authorized, would constitute

a Fourth Amendment violation. United States v. Choate, 422 F. Supp. 261

(C.D. Cal. 1976), rev'd, 576 F. 2d 165 (9th Cir. 1978). See 39 C.F.R.

§ 233.2(c)(1).

6

cert. den. 389 U.S. 897 (1967), which requirements are vague

at best: “whether the allegations of the moving papers, in-

cluding affidavits if any are filed, are sutficiently definite,

specific, detailed, and non-conjectural, to enable the court to

conclude that a substantial claim is presented. If the allega-

tions are sufficient, and factual issues are raised, a hearing is

required.”

Outside of precedents under Rule 41l(e), guidance is pro-

vided in situations where electronic surveillance has been

claimed (under 18 U.S.C. § 3504). But while that law has

grown quite specific with regard to the kind of showing re-

quired by defendants, and the adequacy of various responses

by prosecutors, United States v. Alter, 482 F. 2d 1016 (9th Cir.

1973), it remains for this Court to suggest that that precedent

is applicable in cases like the instant one.

The Court of Appeals decision wholly failed to answer the

question of the appropriate standard to be used in cases of this

sort.

Conclusion.

For the reasons set forth above, the Court should grant this

petition for certiorari.

la

Appendix.

United States Court of Appeals

For the First Circuit

No. 78-1434

UNITED STATES OF AMERICA,

APPELLEE,

v

WILLIAM GODFREY MIGELY,

DEFENDANT, APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. Davip Mazzone, U.S. District Judge]

Before

ALDRICH AND CAMPBELL, Circuit Judges,

AND Gicnoux, District Judge.*

Nancy Gertner, with whom Silverglate, Gertner & Shapiro,

Marcus S. Topel and Paul D. Wolf, were on brief, for appellant.

Respectfully submitted, Robert B. Collings, First Assistant United States Attorney,

NANCY GERTNER, aioe tkehit ia “— o

SILVERGLATE, SHAPIRO

& GERTNER, April 18, 1979

33 Broad Street, CAMPBELL, Circuit Judge. On February 13, 1978, Wil-

Boston, Massachusetts 02109. , liam Godfrey Migely applied in Boston for a passport in

(617) 723-2624 | the name of David Joseph Natta, a deceased infant, pre-

MARCUS S. TOPEL, | senting a birth certificate and an Oregon driver’s license.

360 Pine Street, He was arrested when he returned and signed for the

Top Floor Suite, passport the following day, and was convicted of making

San Francisco, California 94104. a false statement in a passport application, 18 U.S.C. 4 1642,

(415) 421-6140 after a court trial on stipulated facts.

* Sitting by designation.

Qa

2 U.S, UV. MIGELY

Prior to trial, Migely unsuccessfully moved to suppress

all evidence relating to use of the name David Joseph

Natta. This motion was accompanied by claims that Mig-

ely’s arrest had resulted from an illegal, warrantless search

of lis residence or mail, or else from the illegal inspec-

tion of the cover of a letter — i.e., a ‘‘mail cover’? —

addressed to his home in Portland, Oregon. In connection

with his motion to suppress Migely filed a motion for

discovery of the occurrence of any searches made by

means of mail covers or otherwise of mail sent to his home

in Portland. The discovery request was granted, but the

government’s response, that there had been

‘‘no interception of mail or examination of letters

placed in the mail either to or from residences owned

or occupied by the defendant in connection with the

investigation of the charge contained in the instant

indictment,”’’

was ruled adequate by a federal magistrate. Migely still

insisted that an illegal mail cover had occurred, however.

He made a motion for further discovery, asking for in-

formation concerning any mail covers of mail delivered

to his home in Portland, including covers instituted in

connection with two West Coast passport fraud and drug

violation cases involving him and one Dennis Kelly. This

motion was denied at a motions hearing. During the hear-

ing, the Assistant United States Attorney represented

that no mail covers had occurred, and that this answer

included ‘‘all of the investigation that was conducted, and

whatever was done by the Government in connection with

this Kelly case that has gone on on the West Coast.’’ The

1 Defendant uses the term ‘‘mail cover’’ as meaning covert exam-

ination of the outside of a piece of mail in transit. See 39 C.F.R.

§ 233.2(c)(1). Such activity is claimed to constitute a fourth

amendment violation. See United States v. Choate, 422 F. Supp.

261 (C.D. Cal. 1976), rev’d, 576 F.2d 165 (9th Cir. 1978). We need

not consider to what extent, if any, this may be so.

3a

OPINION OF THE COURT 3

prosecutor said that he had discussed the question with

the agents involved, that, ‘‘No mail covers, searches were

made,’’? and that, ‘‘There were no surreptitious entries

about which the Defendant has any standing to complain.’’

Migely then asked for an evidentiary hearing, with a

view toward examining the agents involved and establish-

ing that mail covers or searches in fact had occurred. The

trial court denied this request, as well as the motions for

further discovery and to suppress, indicating that it felt

that Migely was on a fishing expedition.

Migely appeals on the ground that, ‘‘The district court

erred in denying defendant’s motion for an evidentiary

hearing on his motion to suppress made pursuant to Rule

41(c) of the Federal Rules of Criminal Procedure.’’ Al-

though it is not clear that Migley’s motion was in fact

under Rule 41(e),? both parties point to cases decided

under that rule as setting forth a standard for determining

when a defendant is entitled to an evidentiary hearing,

and we agree thai the same standard would in any event

be applicable here.

Evidentiary hearings on motions under Fed. R. Crim. P.

41(e) are not granted as a matter of course; they are

required only when a defendant makes a sufficient show-

ing that a warrantless search has occurred. The defendant

must allege facts, ‘‘sufficiently definite, specific, detailed,

and non-conjectural, to enable the court to conclude that

a substantial claim is presented.’’ Cohen v. United States,

378 F.2d 751, 761 (9th Cir.), cert. dented, 389 U.S. 897

(1967). The factual allegations must be such that, if

proved, would require the grant of relief, Grant v. United

States, 282 F.2d 165, 170 (1960), and must be more than

‘‘general and conclusory or based upon suspicion and

2Neither of Migely’s motions to suppress referred specifically

to Rule 41(e) — as opposed to Rule 41 as a whole — or requested

the return of any property.

4a

4 U.S. VU. MIGELY

conjecture.’’ Cohen, 378 F.2d at 760; accord, United

States v. Poe, 462 F.2d 195, 197 (Sth Cir. 1972), cert. denied,

414 U.S. 845 (1973); United States v. Thornton, 454 F.2d

997, 967 n.65 (D.C. Cir. 1971): United States v. Cranson,

493 F.2d 123, 20-27 (4th Cir. 1971), cert. denied, 406 U.S.

909 (1972); cf. Lawn v. United States, 355 U.S. 339, 348-49

(1958) (mere suspicions create no due process right to

hearing on evidence presented to Grand Jury).

Migely’s showing clearly falls short of meeting these

standards. The allegations made in Migely’s affidavits in

support of his motion to discover and to suppress can be

fairly summarized as follows: The FBI and the Drug

Enforcement Administration had been investigating Dennis

Kelly for possible passport violations involving the use of

birth certificates of deceased infants. They had observed

that Kelly was spending considerable time — and perhaps

residing — at Migely’s house in Portland, Oregon, and

had kept the house under surveillance. In the spring of

1975 they had conducted a warrantless search of a ware-

house rented by Kelly. That December, the Department of

Vital Statistics in Portland sent, on request, the birth

certificate of David Joseph Natta to Migely’s house, which

had a ‘‘flip-top’’ mail box. Within several days after the

certificate was sent the government received a copy of

Natta’s death certificate from the Department of Vital

Statistics. When Migely applied for the passport in Bos-

ton over two years later, a computer check was run and

led to his arrest. The government’s questioning of Migely

immediately thereafter focused on the West Coast in-

vestigation of Kelly.

Migely asks us to infer from these facts that a mail

search violating his fourth amendment rights must have

occurred. But these facts are insufficient to create such

an inference. The government could have learned that the

Natta birth certificate had been sent to Migely’s address in

5a

OPINION OF THE COURT 5

any number of conceivable legal ways, as well as through

the methods hypothesized by Migely. (For example, an

informer may have been involved.) Migely’s theory of an

unlawful search is no more than conjecture and specula-

tion. Given the government’s denial, an evidentiary hear-

ing was not required. See Cohen, 378 F.2d at 760.

Migely urges that the government’s denial was evasive

and inadequate, and that it supported rather than pre-

cluded the need for an evidentiary hearing. He points out

that the government limited its initial response to searches

‘‘in connection with . . . the instant indictment,’’ and its

response at the motions hearing to ‘‘entries about which

the Defendant lias standing to complain.’’ Further, he

objects to the district court’s reliance on the prosecutor’s

oral representation that the government’s response en-

compassed the West Coast investigation as well. Drawing

an analogy to the standards used by some courts when

electronic surveillance is alleged under 18 U.S.C. § 3504,

Migely argues that he is entitled to an evidentiary hearing

because the government did not ‘‘squarely affirm or deny”’

his charges by affidavit. See United States v. Vielguth,

502 F.2d 1257, 1°50 (9th Cir. 1974) (per curiam); Korman

v. United States, 486 F.2d 926, 930-31 (7th Cir. 1973);

United States v. Alter, 482 F.2d 1016, 1024-27 (9th Cir.

1973).

We do not agree that the government’s response either

raised or left open the possibility that a search or a mail

cover had occurred. The government’s written response,

although limited to the ‘‘instant indictment,’’ was broad

enough to negate the possibility that the FBI had dis-

covered that the Natta birth certificate was sent to Mig-

ely’s home through an illega] search. Nor do we find the

Assistant U.S. Attorney’s reference to searches ‘‘about

which Migely had standing to complain’’ objectionable.

There had been a warrantless search of a warehouse rented

6a

6 U.S. UV. MIGELY

by Kelly in the course of the West Coast investigation, and

the Assistant United States Attorney stated during oral

argument before this court that it was because of this

event that he qualified his response. The government was

adequately responsive to Migely’s vague assertions that

the elusive illegal search might have occurred in connec-

tion with the broader West Coast investigation; more-

over, we see no reason to penalize it now because it did not

respond in the form of an affidavit. Migely did not make

a focused request that the government file an affidavit,

nor did he maintain an objection based on the court’s

failure to require one. While the court could have imposed

such a requirement as an exercise of its discretion, Migely’s

showing was not such that it abused its discretion by not

doing so.”

Affirmed.

3 Migely overstates the extent of his legal right to insist that

the government should have responded here in precisely the manner

required when an aggrieved party makes a claim of electronic

surveillance. The government’s duty to ‘‘affirm or deny’’ the oc-

currence of electronic surveillance arises from a specific statute

directed to that type of activity. 18 U.S.C. § 3504. A district court

may doubtless, in its sound discretion, impose a similar duty to

respond where a defendant makes a sufficiently credible claim of

other governmental intrusions violative of the fourth amendment.

As there is no statute, however, the court has rreater latitude in

determining when and how to proceed and what form of response

to accept. Here the government made a denial of the illegal activi-

ties alleged, and we cannot say the district court abused its discre-

tion in deeming the response sufficient both in form and in sub-

stance.