Opposition Brief — Reid v. United States

No. 86-1211

In the Supreme Court of the Gr

OCTOBER TERM, 1986

AMANDA REID, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR _

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether 18 U.S.C. 922(a)(6), which prohibits the

making of a false statement of material fact in connection

with the purchase of a firearm, is unconstitutional as ap-

plied to petitioner.

2. Whether evidence seized in a search of premises in

New York should have been suppressed in petitioner’s

trial.

(I)

TABLE OF CONTENTS

Page

EEE ee ee er ee eee |

TIS I ee a |

EE eA a eee |

et Clete ese b chai eck e dd wns even sere sesenes 11

ER ee ee 17

TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) ............ ’ 15

Franks v. Delaware, 438 U.S. 154 (1978) ............... 9,14

Hodel v. Virginia Surface Mining & Reclamation Ass’n,

es i shih dene Shes sebeceseeas 12

Huddleston v. United States, 415 U.S. 814 (1974) ....... y

Lewis v. United States, 445 U.S. 55 (1980) ............. 12

Standard Drywall, Inc. v. United States, 668 F.2d 156

(2d Cir.), cert. denied, 456 U.S. 927 (1982) ........... 7

United States v. Behenna, 552 F.2d 573 (4th Cir. 1977) ... 13, 14

United States v. Leon, 468 U.S. 897 (1984) ............. 15

United States v. Miller, 307 U.S. 174 (1939) ............ 12

Constitution, statutes and rule:

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) .............. 11

Ag, Ve, Gs. 2coupremacy Ciause) ..............2. 13

EG ee 12

aa ea ss walbla view 6 s.b0 Ooi 4s 12

GE a ee ee 2

i re L, We, 25, 3a. 29

IS I 12, 13

N.C. Gen. Stat. §§ 14-402 to 14-404 (1986) ............. 13

ee, ieee a kb ee ter eaeasdsenes me MEY

Miscellaneous:

S. Rep. 1501, 90th Cong., 2d Sess. (1968) ............-. i

(III)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-1211

AMANDA REID, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

A1-A33a) is reported at 803 F.2d 714 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

Octoter 8, 1986, and a petition for rehearing was denied

on November 21, 198€ (Pet. App. A41-A4la). The peti-

tion for a writ of certiorari was filed on January 20, 1987.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District for

the Middle District of North Carolina, petitioner was con-

victed of making a false statement in connection with the

acquisition of a firearm, in violation of 18 U.S.C.

922(a)(6). She was sentenced to five years’ probation and a

$2,500 fine.

(1)

‘,

bo

1. The evidence at trial, the sufficiency of which is not

in dispute, is set out in the opinion of the court of appeals

(Pet. App. A3-A6, A13-A14). It showed that petitioner,

an attorney, is a partner in the California law firm of

Decious, Reid and Associates and is counsel to the New

York City law firm of Daniel P. Foster, P.C. In May 1981,

petitioner and her parents visited petitioner’s aunt at the

latter’s home in North Wilkesboro, North Carolina. Peti-

tioner had never lived in North Wilkesboro and, with the

exception of this brief family visit, had never visited her

aunt there. On May 7, 1981, petitioner purchased a hand-

gun from a federally licensed firearms dealer in Winston-

Salem, North Carolina. Federal law prohibits a dealer

from selling firearms to a person who is not a resident of

the state in which the dealer resides. 18 U.S.C. 922(a)(5).

On Form 4473, a Bureau of Alcohol, Tobacco and Fire-

arms form that the purchaser is required by law to fill out

(Huddleston v. United States, 415 U.S. 814, 816 (1974)),

petitioner listed as her address the address of her aunt in

North Wilkesboro. For identification, petitioner furnished

a pistol permit, which is required by North Carolina law

for the purchase of a handgun, and an expired interna-

tional student identification card. Petitioner had acquired

the pistol permit two days earlier from the County

Sheriff's Department in North Wilkesboro. At that time,

petitioner told the Sheriff’s Department that she was living

with her aunt in North Wilkesboro. She explained her lack

of any North Carolina identification on the ground that

she had not been in the State long enough to acquire iden-

tification. She stated, however, that she was thinking of

taking the bar examination and staying in North Carolina.

Shortly after purchasing the handgun, petitioner re-

turned to New York. In June 1981, she applied for admis-

sion to the New York bar. On her bar application, peti-

tioner stated that her address was Brooklyn, New York,

ST EE ee |

3

and that she had resided there since October 1978. Peti-

tioner did not list the North Wilkesboro address in

response to a question asking for a list of every permanent

and temporary residence she had had since entering col-

lege.

Petitioner testified at trial that in listing the North

Wilkesboro address on the ATF form, she considered that

address to be a truthful statement of her residence at that

time. Although she had only been at the North Wilkesboro

address on the one occasion, she stated that she considered

it to be her residence because “[{I] could go there at any

time, I could go live with my aunt at any time, I am

welcome there at any time, her home is my home.” Pet.

App. Al3-Al14.

2. Petitioner’s sales receipt for the purchase of the

handgun in North Carolina was discovered during the

search of an office of the Foster law firm at Apartment

1A, 1107 Carroll Street, in Brooklyn, New York. That ad-

dress was one of five locations searched by the FBI, pur-

Suant to warrants, on February 17, 1984.

The warrants were issued on the basis of an affidavit

prepared by FBI Agent Neil Herman (App. 6-46).' Agent

Herman’s affidavit recited that the Provisional Party of

Communists (PPC) operated out of three buildings

located at 1107, 1111, and 1115 Carroll Street in Brooklyn

(App. 7, 9-11, 20). The affidavit then set forth detailed in-

formation about the premises and the PPC that was ob-

tained from several former members of the PPC, Carroll :

Street residents, and other sources as a result of an exten-

sive investigation by the Joint Terrorist Task Force (App.

9, 19-20, 22, 25-27, 29, 33, 38).

The affidavit stated that the PPC was a revolutionary

communist party founded in 1971 whose goal was the

overthrow of the United States government by military

' “App.” refers to the Supplemental Appendix filed by the govern-

ment in the court of appeals.

4

force (App. 10-11, 22, 25-26, 28-29, 33-34). Numerous

“front organizations,” mostly unions, were run and con-

trolled from the PPC’s national office, which was located

in Apartment 2A at 1107 Carroll Street (App. 12-13, 22). 7

Directly below ihe national office, in Apartment 1A, was

the law firm of Daniel Foster, a PPC member (App. 13).

The law firm was controlled by the PPC and staffed and

run by PPC members (ibid.). Apartment 1A also housed

the office of Gino Parenti, the leader of the PPC (App.

13-14). All PPC operations were conducted out of the na-

tional office and from Foster’s law firm (App. 13). One of

the front organizations used by the PPC was “Foxfire

Enterprises, Inc.,” which owned and operated the three

buildings at 1107, 1111, and 1115 Carroll Street (App.

12-13). One of the PPC’s “safe houses” was a penthouse

apartment located at 145 West 55th Street in Manhattan

(App. 17).

The affidavit recited that the scheduled date for the

PPC’s planned coup was February 19, 1984 (App. 10, 20,

25). The coup was to be undertaken by the “military frac-

tion” of the PPC and by means of a general strike on the

east and west coasts by unions under PPC control (ibid.).

The PPC anticipated that it would take three days of

fighting to complete the coup (App. 19). The “military

fraction” of the PPC conducted military drills, and its

members received military training (App. 11-12, 21-22).

The affidavit recited that within the preceding 18 months,

more than 100 firearms—including submachine guns,

assault rifles, and military style M-1 carbines—had been

seen in Apartment 2A at 1107 Carroll Street, and that

within the preceding five days, hand grenades and

. numerous other firearms and ammunition had been seen

in Parenti’s apartment (App. 15, 18-19, 21, 27, 29). APPC

guard kept a 24-hour “lookout” from the PPC’s second

story window at 1107 Carroll Street, and during “alerts,”

armed PPC members were frequently seen at the Carroll

un

Street location (App. 14-15, 28, 41). The affidavit further

recited that records and files of the “military fraction”

were maintained in Foster’s law office at Apartment 1A,

1107 Carroll Street, and that other PPC files were to be

found throughout Apartment 2A (App. 13-14).

Finally, the affidavit stated that on February 16, 1984,

grand jury subpoenas had been served on Daniel Foster

and Kathryn Conelly Decious to produce certain

documents (App. 42). Decious and Foster appeared before

Judge Eugene Nickerson of the United States District

Court for the Eastern District of New York that same day

to contest the validity of the subpoenas.-They indicated at

that time that they did not have the requested records or

any knowledge of them (App. 42-43).

On the basis of Agent Herman’s affidavit, Judge Henry

Bramwell of the United States District Court for the

Eastern District of New York issued warrants on the even-

ing of February 16, 1984, authorizing the search of the

Carroll Street buildings and the penthouse apartment in

Manhattan (App. 1-5A). The search warrant for Apart-

ment 1A at 1107 Carroll Street authorized the officers to

search for, inter alia, “records relating to the purchase,

storage and disposal of weapons, ammunition and ex-

plosives” (App. 2).2 During the search of Apartment 1A,

2 The search warrant for Apartment 1A, 1107 Carroll Street,

authorized a search for (App. 2):

1. Weapons (rifles, handguns and machineguns) and other

military equipment including uniforms;

2. Explosives;

3. All records of the Provisional Party of Communists (PPC)

relating to the purchase, storage, location and disposal of

weapons, ammunition and explosives;

4. All books, documents and records outlining the PPC’s plans

for an armed insurrection against the lawful authority of the

United States Government;

————S ee

6

agents found the sales receipt for the firearm petitioner

had purchased in North Carolina (App. 88, 98, 164-168).

All the items seized during the several searches were taken

to the FBI office in the Southern District of New York,

where they were inventoried and stored under lock and key

(App. 75, 107). Thereafter, pursuant to court order, the

government made available to Daniel Foster for inspection

and copying all the material that had been seized from his

Carroll Street law office (App. 267-270).

3. Following the searches, Foster filed motions in the

United States District Court for the Eastern District of

New York to quash the search warrants and for return of

property (App. 258, 290-291). Following a hearing on

March 7, 1984 (App. 256-300), the district court denied the

motion to quash, ruling that it was moot because the war-

rants had been executed and returned and noting that a

motion to suppress could be filed if criminal charges were

brought (App. 258, 283, 286-288).

5. All records relating to planned terrorist activities;

6. All records of the “Military Fraction” of the PPC including,

but not limited to, records detailing planned military activities

directed against the lawful authority of the United States Govern-

ment, records detailing planned terrorist activities, records con-

cerning the location of “Military Fraction” headquarters, records

relating to the location of weapons, ammunition and explosives,

records relating to the purchase, storage and disposal of

weapons, ammunition and explosives, records relating to the

identity of those individuals making up the “Military Fraction” of

the PPC and records relating to the system of communications

among and between the different locations of the “Military Frac-

tion” of the PPC; and

7. The books and records of Foxfire Enterprises, Inc.

3 During the March 7 hearing before Judge Bramwell, Foster com-

plained that at the time the government sought the search warrants

from Judge Bramwell, the question of the validity of grand jury sub-

poenas issued on February 16 for'some of the same material was pend-

ing before Judge Nickerson (App. 259-260, 264-265). Judge Bramwell

7

Thereafter, Foster filed several motions in the United

I States District Court for the Southern District of New

| York, including a motion to quash the search warrant ex-

if ecuted at 145 West 55th Street and a motion pursuant to

| Fed. R. Crim. P. 41(e) for suppression and return of the

items seized at that address. The district court denied the

motions on April 23, 1984 (App. 254-255). With respect to

the Rule 41(e) motion, the court ruled that given Foster’s

right of access to the seized material, he had failed to show

that he would be irreparably harmed if the seized material

was not returned (App. 255, citing Standard Drywall, Inc.

v. United States, 668 F.2d 156 (2d Cir.), cert. denied, 456

U.S. 927 (1982)).

In September 1984, Foster filed a further motion in the

Southern District of New York for return of the material

seized from the Carroll Street buildings and 145 West 55th

Street. At the November 16, 1984, hearing on that motion,

the government informed the court that it had returned to

Foster ail of the material seized from the West 55th Street

location (App. 238-242). Because that was the only

material seized in the Southern District of New York

(App. 241-242), the court ruled that Foster had been

granted full relief with respect to documents seized in the

Southern District (App. 242-243). The court further

stated: “{[M]y denial of further relief is explicitly condi-

tioned on the proposition that the plaintiff not be deemed

to have waived any rights which it would otherwise have

commented that had he known that the matter was pending before

Judge Nickerson, he doubted that he would have signed the search

warrants (App. 260, 265). The attorney for the government informed

Judge Bramwell that he had spoken to Judge Nickerson on the even-

ing of February 16 and advised him that the government was applying

for several search warrants for material that included some of the sub-

ject matter of the subpoenas whose validity was to be considered by

Judge Nickerson. The attorney for the government further stated that

Judge Nickerson had suggested that the government apply to Judge

Bramwell for the warrants because Judge Bramwell lived closer to the

courthouse (App. 265-266).

8

under Rule 41 B [sic], or any other rights, to move to sup-

press the use of any such documents or copies of

documents unless they are hereafter legally and properly

seized for law enforcement purposes” (ibid.). In a subse-

quent written order, the court ruled that insofar as Foster’s

motion for return of property pertained to material seized

in the Eastern District of New York (that is, from the Car-

roll Street buildings), Rule 41(e) required that the motion

be filed in the Eastern District (App. 233-234).

Foster then filed a motion in the Eastern District for

return of the Carroll Street property and to quash the

search warrants that had been executed in the Eastern

District. The district court denied those motions in an

order dated June 7, 1985 (App. 229-232). The government

represented to the court that it intended voluntarily to

return all the property seized in the Eastern District (App.

229, 230). The government also informed the court that

criminal charges were pending against petitioner in federal

district court in North Carolina and that the government

might seek to introduce at that trial certain evidence that

had been seized during the Carroll Street search (App.

231). The court declined to exercise its jurisdiction to pass

on the Rule 41(e) motion, noting that the Foster firm

would suffer no continuing injury because the government

intended to return the property (App. 230) and that it

would be inappropriate for the court to rule on the ad-

missibility of any of the evidence that might be offered at a

future trial in another district (App. 230-231).

4. Following her indictment on the instant charges,

petitioner moved to suppress the sales receipt on the

grounds that the search warrants were invalid as general

warrants; that the warrants were not supported by probable

cause; that the seizure of the sales receipt was outside the

scope of the warrants; and that the search was conducted

in an unlawful manner. At the hearing on these claims

(App. 47-200), the district court expressed the view that

9

unless petitioner met the test set out in Franks v.

Delaware, 438 U.S. 154 (1978), by establishing that the af-

fiant knowingly and intentionally included in the affidavit

false statements that were necessary to the finding of prob-

able cause, he had no authority to invalidate a warrant

issued by another federal district judge (App. 53). Peti-

tioner argued that she met the Franks standard because the

source of the information recited in paragraphs 18 and 25

of the search warrant affidavit was material that had been

suppressed during earlier state court proceedings (App.

54-55). The district court found that even absent the infor-

mation recited in those paragraphs, there was an “abun-

dance” of probable cause (App. 57, 60-61).

Petitioner also argued that the search warrants had been

improperly issued because, when it sought the warrants

from Judge Bramwell, the government did not advise him

that a challenge to the validity of grand jury subpoenas

seeking the same material was pending before Judge

Nickerson (App. 50-51, 54). Petitioner relied (App. 52) on

Judge Bramwell’s statement that he doubted that he would

have issued the warrants had he known of the matter

pending before Judge Nickerson. The district court noted

that Judge Bramwell’s statement merely reflected a

hesitancy to involve himself in a case being handled by

another judge, and it concluded that whether or not Judge

Bramwell would have issued the search warrants had he

known that a related matter was pending before Judge

Nickerson had no bearing on the validity of the search

warrants (App. 61).

Finally, petitioner argued that the sales receipt for peti-

tioner’s firearm had been seized from the building located

on West 55th Street in the Southern District of New York

and that District Judge Lasker on November 16, 1984, had

suppressed all the material that had been seized in that

district (App. 62-63). The government responded that

10.

Judge Lasker had issued no order suppressing evidence

seized in the Southern District of New York, and that in

any event the receipt had been seized from 1107 Carroll

Street, which was located in the Eastern District of New

York (App. 63-64). After a hearing on the latter issue

(App. 68-191), the court found that the receipt had been

seized at 1107 Carroll Street (App. 194-196). The court

then denied petitioner’s motion to suppress and to dismiss

the indictment, stating: “I don’t find anything wrong with

the search, seizure, or anything else pertaining to the war-

rant. The preponderance of the evidence leads me to the

conclusion that it was proper in every respect.” App. 196.

5. The court of appeals affirmed petitioner’s convic-

tion (Pet. App. Al-A33). The court found the evidence

“quite sufficient to support a finding of guilt beyond a

reasonable doubt on the critical issue of [petitioner’s]

specific intent given the fleeting contact she had with the

North Carolina ‘residence’ she claimed, and her conflicting

statements of residence in other contexts” (id. at A33). The

court also summarily rejected as “without merit” peti-

tioner’s claim that 18 U.S.C. 922(a)(6) was unconstitu-

tional as applied to her (Pet. App. A32). Finally, the court

of appeals sustained the district court’s refusal to suppress

the sales receipt. It found (1) “no error in [the district

court’s}] conclusion that a substantial basis supported the

Eastern District of New York Court’s finding of probable

cause for the issuance of the warrants” (Pet. App. A28),

and (2) that petitioner had failed to show that Agent

Hansen’s affidavit contained knowingly false statements

that were necessary to the finding of probable cause (id. at

A27). In this regard, the court of appeals found substan-

tial evidence to support the district court’s finding that the

seizure of the receipt occurred in the Eastern District of

New York, and it therefore declined to consider the effect

of any rulings by the District Court for the Southern

District of New York. /d. at A23-A25.

i.

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of another

court of appeals. Review by this Court therefore is not

warranted.

1. Petitioner first contends (Pet. 8-21) that 18 U.S.C.

922(a)(6) is unconstitutional as applied because her pur-

chase of a firearm represented a purely “local transaction”

in which the federal government had no legitimate in-

terest. This claim is without merit.

a. The Gun Control Act of 1968 was passed by Con-

gress in response to concerns over the widespread traffic in

firearms and their easy availability to persons whose

possession of firearms was contrary to the public interest.

The primary purpose of the Act was “to curb crime by

keeping ‘firearms cut of the hands of those not legally en-

titled to possess them because of age, criminal

background, or incompetency.’ ” Huddleston v. United

States, 415 U.S. 814, 824 (1974) (quoting S. Rep. 1501,

90th Cong., 2d Sess. 22 (1968)). Section 922(a)(6) was

enacted as a means of documenting firearms transactions. '

As this Court explained in Huddleston, 415 U.S. at 825:

Information drawn from records kept by dealers was a

prime guarantee of the Act’s effectiveness in keeping

“these lethal weapons out of the hands of criminals,

drug addicts, mentally disordered persons, juveniles,

and other persons whose possession of them is too

high a price in danger to us all to allow.” 114 Cong.

Rec. 13219 (1968) (remarks of Sen. Tydings). Thus,

any false statement with respect to the eligibility of a

person to obtain a firearm from a licensed dealer was

made subject to a criminal penalty.

Given Congress’s power under the Commerce Clause to

regulate sales by firearms dealers, Congress plainly has the

12

power to impose criminal sanctions on a person who

makes a false statement of material fact to a firearms

dealer. Such regulation of private transactions affecting

commerce does not impermissibly interfere with the

powers reserved to the states by the Tenth Amendment.

Hodel v. Virginia Surface Mining & Reclamation Ass'n,

452 U.S. 264, 283-293 (1981).*

b. Petitioner contends (Pet. 10-11, 18-21) that the Gun

Control Act constitutes an impermissible intrusion into

state police power in another respect as well. Her argu-

ment is as follows: North Carolina law provides that a

county sheriff may issue a pistol permit to residents of the

county. The Sheriff of Wilkes County issued her a permit,

thus determining that petitioner had sufficient local ties to

qualify as a resident of that county. Accordingly, peti-

tioner’s federal prosecution for making a false statement

concerning her residence in connection with the acquisi-

tion of a firearm interfered with the State’s right to define

“residency.” This claim is frivolous.

Section 922(a)(6) makes it a crime for anyone knowingly

to make any false statement that is intended or likely to

deceive a firearms dealer with respect to any fact material

to the lawfulness of the sale of a firearm. Section 922(b)(3)

+ Contrary to petitioner’s contention (Pet. 16-18), application of the

federal Gun Control Act in these circumstances likewise does not

violate the Second Amendment. It is settled that the Second Amend-

ment is not an absolute bar to congressional regulation of the use and

possession of firearms; it protects use or possession that “has some

reasonable relationship to the preservation or efficiency of a well

regulated militia.” United States v. Miller, 307 U.S. 174, 178 (1939);

see also Lewis v. United States, 445 U.S. 55, 65 n. 8 (1980). Petitioner

can make no such claim here. Moreover, petitioner was not convicted

of keeping and bearing arms. She was convicted of making a false

statement in connection with her acquisition of a firearm — activity

that Congress has proscribed as an incidental part of a comprehensive

statutory scheme for curbing the illegal possession and transfer of

firearms.

Je tiesto

13

makes it unlawful for a dealer to sell a firearm to any per-

son who he believes or has reasonable cause to believe does

not reside in the state in which the dealer’s business is

located. The jury found that at the time petitioner pur-

chased the firearm in question, she falsely stated that she

resided at her aunt’s address in North Wilkesboro, North

Carolina. Given the prohibition in Section 922(b)(3)

against sales to nonresidents, petitioner’s false statement

was unquestionably material.

Nothing in Section 922(a)(6) conflicts with North

Carolina law on the same subject. The applicable state

statutes make it unlawful for a dealer to sell a pistol to a

person without a permit and authorize the county sheriff

to issue a permit to a resident of the county. N.C. Gen.

Stat. §§ 14-402 to 14-404 (1986). Thus, North Carolina

law, like federal law, requires that a permit for the sort of

firearm petitioner purchased be issued only to a resident of

the State. That the Wilkes County Sheriff issued petitioner

a permit upon her representation that she intended to re-

main in that county in no way established that petitioner in

fact was a resident of North Carolina; if anything, it sug-

gests that the Sheriff erroneously issued petitioner a per-

mit. Indeed, petitioner fails to cite any definition of “resi-

dent” under North Carolina law by which she could con-

ceivably qualify as a resident of North Carolina. In any

event, Congress has full power to regulate matters affect-

ing commerce in firearms. Under the Supremacy Clause,

the laws Congress enacts on that subject — including those

at issue in this case that prescribe the definition of

residence and establish procedures for ascertaining

residence —are controlling, ‘any Thing in the Constitution

or Laws of any State to the Contrary notwithstanding.”

U.S. Const. Art. VI, Cl. 2.° |

5 Petitioner’s reliance (Pet. 15-16) on United States v. Behenna, 552

F.2d 573 (4th Cir. 1977), is misplaced. First, as the court of appeals

noted in the instant case (Pet. App. A20-A21), the defendant in

hd

2. Petitioner’s various challenges to the district court’s

denial of her motion to suppress the sales receipt (see Pet.

22-46) are also without merit.

a. Contrary to petitioner’s contention (Pet. 23-24), the

record shows that the district court conducted an extensive

hearing on petitioner’s motion to suppress (App. 47-200),

after which it ruled that the warrant and ensuing search

were- proper in every respect (App. 194-196). Petitioner

cites nothing to support her assertion that she was

foreclosed from introducing evidence bearing on her mo-

tion to suppress. To be sure, the district court expressed

the erroneous view that under Franks v. Delaware, it had

no authority, in the absence of a showing that the affidavit

contained knowing misrepresentations necessary to the

finding of probable cause, to invalidate a warrant issued

by another federal district judge (App. 53). However, peti-

tioner did not take issue with the court’s statement to that

effect. Instead, she maintained that she could make a

showing that satisfied the Franks v. Delaware standard

that the district court invoked (App. 53-62).°®

In any event, the district court’s misapprehension was of

no moment, because the court carefully scrutinized the

warrant and the-ensuing search and found them to be

proper in every respect. The record fully supports the

district court’s conclusion in that regard. The detailed

40-page affidavit of FBI Agent Herman indisputably pro-

Behenna objected to the jury instructions regarding his intent with

respect to residence; petitioner did not do so. Second, as the court

below further noted (Pet. App. A21-A22), the decision in Behenna

was “highly fact-specific” and “focused upon ambiguity of particular

instructions in relation to particular evidence” regarding the defend-

ant’s future residence. In any event, the distinctions drawn by the

court below between this case and its prior decision in Behenna pre-

sent no issue warranting review by this Court.

© Petitioner likewise did not urge reversal on this particular ground

in the court of appeals (see Appellant’s Br. 10-20), and she mentions

the point only in passing here (see Pet. 30).

15

vided the requisite probable cause for issuance of a war-

rant, even without the two paragraphs that petitioner

challenged as false. Indeed, petitioner does not contend

otherwise. As the district court observed at the suppres-

sion hearing, any judicial officer who did not issue a war-

rant when presented such an affidavit “would be derelict in

[his] duty” (App. 61). Moreover, because the executing of-

ficers were, at the very least, entirely justified in relying on

the warrant issued by a federal district judge, petitioner

would not be entitled to suppression of the sales receipt

even if the courts below had concluded that the affidavit

did not provide sufficient probable cause to support the

warrant. See United States v. Leon, 468 U.S. 897 (1984).

b. Nor is there any merit to petitioner’s argument (Pet.

37-43) that the warrant was unconstitutionally overbroad

because it provided no guidance to the agents as to what

was to be seized and because the agents had to examine the

contents of every document in order to determine whether

it was within the scope of the warrant. The warrant made

perfectly clear what items were subject to search and

seizure. It authorized the search for guns and ammunition;

records pertaining to the purchase, storage, location, and

disposal of those weapons; records concerning PPC’s ter-

rorist activities and its plans for an armed insurrection

against the United States; and the records of Foxfire

Enterprises. The fact that the searching agents had to ex-

amine numerous documents at 1107 Carroll Street in order

to determine which documents fell within the scope of the

warrant does not establish that the warrant was over-

broad. In document searches of the nature involved here,

a cursory examination of innocuous documents is in-

evitable and entirely proper. Andresen v. Maryland, 427

U.S. 463, 482 n.11 (1976).

c. Petitioner’s related claim (Pet. 41) that the sales

receipt was outside the scope of the warrant because it

“was not listed individually or categorically as an item to

|

16

be seized” is wholly insubstantial. The warrant authorized

the search for “records relating to the purchase, storage

and disposal of weapons” (App. 2). The fact that peti-

tioner’s name was not specifically mentioned in the war-

rant is irrelevant.’

d. Finally, there is no merit to petitioner’s contention

(Pet. 33-35) that the district court should have suppressed

the receipt and dismissed the indictment on the basis of the

November 16, 1984, order by Judge Lasker in the

Southern District of New York. Petitioner characterizes

that order — which is quoted in relevant part in the court of

appeals’ opinion (Pet. App. A10)—as one suppressing all

items seized in the Southern District. That characteriza-

tion is simply erroneous. In context, it is clear that Judge

Lasker was not ruling on the legality of the search or sup-

pressing any evidence seized in his district. Indeed, Judge

Lasker never considered any evidence concerning the

” Petitioner’s suggestion (Pet. 24-29) that the government acted im-

properly or that the warrant was invalid because the grand jury one

day earlier had issued subpoenas for some of the same material also is

insubstantial. Contrary to petitioner’s intimation (Pet. 25-26), the

pendency before Judge Nickerson of a challenge to the subpoenas was

not hidden from Judge Bramwell, who issued the search warrant.

That fact was recited in Agent Hansen’s affidavit that was submitted

to Judge Bramwell in support of the warrant application (App. 42-43).

Furthermore, Judge Bramwell’s comment that he might not have

issued the search warrant if he had known that the matter was pending

before Judge Nickerson merely reflected a reluctance to interfere; it

did not imply that the search warrant should not have been issued or

that the government had acted improperly (App. 61, 265-266). Final-

ly, as explained in the affidavit (App. 42-43) and by the government

during the March 7, 1984, hearing before Judge Bramwell (App. 260),

there were grounds to believe that Foster and Decious had made

misrepresentations to Judge Nickerson when they stated in contesting

the subpoenas that they did not have any of the records in question.

Because there was probable cause to believe that the PPC planned

violent activity on February 19, 1984 (App. 10, 20, 25), circumstances

plainly justified the government’s seeking a search warrant to be ex-.

ecuted on February 17, 1984.

17

search. And in the November 16 order, he in fact denied

Foster’s Rule 41(e) motion for return of the property that

had been seized from 145 West 55th Street because the

government had returned that property to Foster (App.

233-234, 238-243). In so doing, Judge Lasker merely noted

that his order did not foreclose Foster (or, presumably,

petitioner) from later challenging the legality of the search

in any subsequent criminal proceeding. Petitioner was af-

forded an opportunity to do precisely that in her prose-

cution below.

Furthermore, as the district court found, the sales

receipt was not seized in the Southern District of New

York, but from 1107 Carroll Street in the Eastern District

of New York (App. 194-196). The court of appeals held

that the district court’s finding on this point was supported

by substantial evidence, which it recited in considerable

detail (Pet. App. A23-A25). That concurrent factual

determination by the courts below is not clearly erroneous

and does not warrant review by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Altorney

APRIL 1987

U.S GOVERNMENT PRINTING OFFICE: 1987— 181-483/40285