# Petition for Writ of Certiorari — Welliver v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1891%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 1004 ## Text Supreme Court, U.S. FILED | DEC 29 192 No. OFFICE OF THE CLERK In The Supreme Court of the United States October Term, 1992 0 ©) cy ons * -) . wy r oF fF @ } | : ; aR. ~ the Court of Appeals held that if a government entity had a contractual right of access to 5 In fact, at trial the FCIC never identified a single regula- tion or rule promulgated by the FCIC relevant to Petitioner’s case. 17 business records, a business owner could never challenge the warrantless seizure of his records because he had no reasonable expectation of privacy. Such a holding is clearly invalid in light of this Court’s Fourth Amendment cases. Additionally, this is not a case where a corporate officer is claiming a right of privacy in corporate records. This case involves a sole proprietor who did not operate his businesses as corporations. The distinction between corporate and individual enterprise is one of the deepest in our constitutional law. In Hale v. Henkel, 201 U.S. 43 (1906), the Court stated: . we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitu- tional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. 201 U.S. at 74-75. (Emphasis added). Petitioner had an objectively reasonable expectation of privacy in his business records so as to require a search warrant or an administrative subpoena before allowing his records to be seized by a government agent. As a sole proprietor, Petitioner’s expectation of privacy in his busi- ness records is precisely the type of right that society recognizes as reasonable. See New York v. Burger, supra, 18 482 U.S. at 699. These records were not required by statute to be kept nor were they subject to inspection by statute. This case clearly does not fall within the excep- tions recognized by this Court for warrantless searches and seizures in highly regulated industries. The Court of Appeals’ decision in this case also con- flicts with the Court of Appeals for the Tenth Circuit in United States v. Leary, 846 F.2d 592 (10th Cir. 1988). it is also inconsistent with the Fifth Circuit’s decision in Mason v. Pulliam, 557 F.2d 426, 429 (Sth Cir. 1977). The Court of Appeals’ premise in this case is that Petitioner lacked the requisite expectation of privacy in his own business records because the FCIC “had the right to inspect any company records.” (A-11) (emphasis in origi- nal). The implicit suggestion is that somehow any privacy interest in the records was waived by the Petitioner or that he consented to the seizure. The “expectation was clearly unreasonable, as he was obligated to give the FCIC ‘access to any operation of the company’ ‘for the purpose of investigation, audit, or examination.’ ” (A-11). The Court of Appeals ignored the district court’s finding that the reinsurance agreement “doesn’t amount to or need not amount to a consent,” and deleted this language from its quote of the district court’s conclusion. (A-9, 10, 18). In addition, the Court of Appeals erroneously equa- ted a contractual right of access with a right of seizure without a warrant. In United States v. Leary, supra, two officers of an exporting company challenged a search warrant pursuant to which 20 boxes of business records were seized. The government argued that either the individuals waived their Fourth Amendment rights or consented to the 19 search because they had adopted an “open door policy,” inviting government agents to inspect their business records. Id. at 597. The Court found that the company’s “open door” policy did not negate the defendants’ expec- tation of privacy. “There is a distinction of constitutional significance between the company’s policy, which invited government agents to ‘visit . . . and ask for any file or information they want or need,’” and a seizure and removal of 20 boxes of files. Id. The Court specifically noted that the defendants invited the government agents to inspect and copy records, not to seize them. Id. at 599. The Court held that even if the defendants’ policy could be characterized as an ongoing consent to government searches, the government had exceeded the scope of that consent by seizing the records. Id. at 599. Similarly, in Mason v. Pulliam, supra, the Fifth Circuit held that when the basis for a search or seizure is consent, the govern- ment must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects. 557 F.2d at 429. Contrary to the above cases, in the instant case, the Court of Appeals held that the Petitioner had no constitu- tional right to challenge the warrantless seizure of his records simply because he had contractually agreed to provide access to those records. In the first place, it must be noted that Petitioner was not a party to the contract in question; it was a contract between the FCIC and the two Mutual of Omaha companies for which the Petitioner was just the managing general agent. The records that the FCIC had the right of access to were Mutual of Omaha records, not Petitioner’s. Secondly, even if the Court of Appeals was correct in accepting the claim that Petitioner 20 was bound as a managing general agent by its principal’s contractua! provision,® only access to records was agreed to, not permission to seize them. Petitioner, at all times, retained control over his premises and records and had given instructions to keep them confidential. He clearly had the authority to restrict the government’s access to his business records, notwithstanding the contractual obligation. In fact, the contract itself provided for arbitra- tion or administrative appeals for disputes. The Court of Appeals improperly transformed Peti- tioner’s contractual obligation to provide access, which he was free to breach, into a right of the government to seize business records without a warrant. Certainly Peti- tioner would have been entitled to expect that his records would not be taken from him without the government first requesting access. The reinsurance agreement relied upon by the Court of Appeals, contained other provi- sions, of which Petitioner was aware, which stated what action the FCIC could take against a company not in compliance with the provisions of the agreement. In addi- tion to the usual remedies available to the FCIC for breach of contract, the agreement provided that the FCIC could rescind or deny liability for reinsurance, deny pay- ment of a share of a premium or of an expense reimburse- ment payable, or refuse to assume any further reinsurance agreements. The agreement also allowed for © The district court did not make this finding. This is an example of how the Court of Appeals mischaracterized the facts in a number of respects in its opinion ard drew faulty conclu- sions as a result. 21 arbitration or administrative appeal of any misunder- standing or dispute arising between the company and the FCIC. Thus, the very agreement relied upon by the Court of Appeals to destroy Petitioner’s expectation of privacy, contains other provisions authorizing FCIC actions, none of which included warrantless seizures or even adminis- trative subpoenas. Clearly, the Petitioner did not unequivocally consent to the seizure of his business records, as a result of the contract provision which arguably obligated him to pro- vide access to his business records.” If Petitioner con- sented to anything it was that the government could ask and look at his records; he did not give them his permis- sion to take his records. The decision in this case cannot be squared with the decisions of the Tenth Circuit in Leary and with the Fifth Circuit opinion in Mason. However, it is arguable that the Court of Appeals’ decision in this case is in line with the Second Circuit opinion in United States v. Chuang, 897 F.2d 646 (2nd Cir. 1990), cert. denied, 111 S. Ct. 77 (1991) (Bank president did not have a legiti- mate expectation in privacy in bank documents examined by the office of the Comptrolier of the Currency (“OCC”)). Although the holding in Chuang is more defen- sible because the defendant was a corporate officer of a bank, which is a heavily regulated industry and the OCC must conduct regular audits, its rationale is similar to the Court of Appeals in this case. Significantly, these four courts of appeals’ decisions evidence a split of authority 7 The district court found that the provision did not amount to a consent. (A-17, 18). 22 in the important area of Fourth Amendment jurispru- dence that demonstrates a clear need for Supreme Court consideration. Il. JUROR QUESTIONING IN CRIMINAL CASES IS INHERENTLY PREJUDICIAL. The question whether to permit jury questioning of witnesses during criminal trials, and if so, under what circumstances is an issue ripe for Supreme Court review. Numerous circuits have grappled with this issue with varying standards of review and results. For example, in the instant case the Court of Appeals applied the “plain error” standard of review and held that the district court had not committed plain error in allowing oral jury ques- tions in the absence of a contemporaneous objection. (A-14). See also United States v. Land, 877 F.2d 17 (8th Cir.), cert. denied, 493 U.S. 894 (1989) (court held that, absent a contemporaneous objection, jury questioning, though a “somewhat troubling” procedure as implemented in that jurors stated their questions, as here, from the box with- out prior consideration by the coursi, could only be reviewed for plain error which was absent in that case). In United States v. Johnson, 892 F.2d 707 (8th Cir. 1989), the majority opinion found no plain error. However, Chief Judge Lay wrote a concurring opinion, joined by Judge McMillian, addressing the serious constitutional ques- tions arising from the practice of jury interrogation of witnesses, particularly of the defendant in criminal cases. Additionally, in United States v. Lewin, 900 F.2d 145 (8th Cir. 1990), the court found no plain error per se in jury 23 interrogation and reviewed the jury questions for abuse of discretion by the trial court. Other circuits have considered the question and their opinions evidence a lack of uniformity.® In United States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986) the Fourth Circuit disapproved of the district court “inviting juror questioning . . . as well as permitting a juror to state his question within the hearing of the other jurors,” but found no prejudice upon which to base a reversal. Id. at 413. Shortly before Polowichak was decided, the Fourth Circuit considered the question in a civil case and exhaustively described the dangers inherent in allowing juror questions. DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985). The dangers in the practice of allowing juror questions according to the Fourth Circuit are as follows: (1) Judicial system is founded upon the presence of a neutral fact finder to discern the truth from the positions presented by adverse parties. Only relevant and admissible evidence should be put before the neutral fact finder. Jurors are not trained in the law and do not know what is legally relevant and what is legally admissible. Thus, there is a much greater risk of improper or prejudicial questions from jurors. (2) An oral question whether answered or unanswered may 8 The state courts have also addressed this issue with inconsistent holdings. See State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (Neb. 1991) (jury questioning prohibited); People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972) (juror questioning is permitted within discretion of trial court); People v. McAlister, 167 Cal. App.3d 633, 213 Cal. Rptr. 271 (1985) (procedure allowed for juror to submit written questions, subject to review by the court and counsel). 24 influence the perceptions of the other jurors. (3) Even if the court takes remedial steps after an improper question is asked, the questioning juror may feel his or her pursuit of the truth has been thwarted. (4) Since questions are from one or more jurors, the possibility that the jury will attach more significance to the answers to these jury questions is great. DeBenedetto, supra, 754 F.2d at 517. Notwithstanding these dangers the Fourth Circuit did not reverse because it found no prejudice. Id. In United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.), cert. denied, 444 U.S. 826 (1979), the trial court allowed one written jury question to be asked. The defen- dant appealed and the court of appeals said “proper handing of juror questions [was] a matter within the discretion of the trial judge.” (Citations omitted). The Fifth Circuit Court of Appeals held that there was no error committed in allowing the one question to be asked and that the procedure employed of requiring jurors to put their questions in writing and clear their relevancy first with the court was not an abuse of the court’s discretion. Id. Yet, in United States v. Nivica, 887 F.2d 1110, 1123 (1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990), the Court of Appeals for the First Circuit held that it was within the trial court’s discretion to deny the defendant’s request to allow jury interrogation, but generally disparaged the practice. “It seems foolhardy to suggest that a judge ina multiple defendant criminal case must freely allow jurors to question a witness... . ” Id. In United States v. Witt, 215 F.2d 580 (2nd Cir.), cert. denied sub. nom. Talanker v. United States, 348 U.S. 887 25 (1954), some jurors put questions to witnesses and received answers. The Second Circuit Court of Appeals held that the matter was within the judge’s discretion, like witness-questioning by the judge himself. Id. at 584. However, the Witt opinion failed to discuss Pacific Improvement Co. v. Weidenfeld, 277 F. 224 (2nd Cir. 1921), in which the court stated that “a jury should listen to evi- dence, counsel should elicit, and the court should dis- courage, and, if necessary, suppress, such idly curious jurors as this record displays.” Id. at 227. Thus, the courts of appeals that have considered the question are not in accord. Some courts discourage juror questioning but allow the practice within the discretion of the trial court, and only review for prejudice. Some courts review only for plain error. One court did not allow any juror questioning. In contrast, some courts allow the jurors to submit written questions to the court, subject to review by the court and counsel. Oral juror questioning is inherently prejudicial and the technique suggested by those jurisdictions that permit written questions, does not cure the problem because it does not deal with the fundamental question of what effect juror questioning may have, or may appear to have on juror impartiality. “The fundamental problem with juror questions lies in the gross distortion of the adver- sary system and the misconception of the role of the jury as a neutral fact finder in the adversary process.” United States v. Johnson, 892 F.2d at 713 (Lay, C.J., concurring). Due process requires a fair trial before a fair and impartial jury. Criminal convictions should be based on evidence elicited by counsel which is heard, evaluated 26 and acted upon by jurors who have no investment in obtaining answers to questions they have posed. Permit- ting juror questions puts the jury in the adversary process and disrupts neutrality. Our system of justice depends on a neutral jury. As Chief Judge Lay said in his concurring opinion in Johnson, supra, 892 F.2d at 715, “when the jury becomes an advocate or inquisitor in the process it for- sakes its role of arbiter between the government and its citizens.” Similarly, this Court has noted: The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action [of government]. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compli- ant, bias, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympa- thetic reaction of the single judge, he was to have it. Duncan v. Louisiana, 391 U.S. 145, 156 (1968). The issue of whether juror interrogation is proper reaches constitutional dimensions in a criminal case. A criminal defendant is constitutionally entitled to due pro- cess under the Fifth Amendment and to a trial by a fair and impartial jury under the Sixth Amendment. Jury questioning is inherently prejudicial and infringes upon the defendant’s constitutional right of due process and right to an impartial jury. As a matter of law, jurors should not be permitted to become participants in the trial at which they are the sole 27 judge of the facts. A defendant is prejudiced by allowing jurors to ask questions, because such conduct unfairly benefits the government by reopening direct examination and augmenting the government’s case-in-chief. Jurors should not be allowed to assist the government in satisfy- ing its burden of proof by adducing additional evidence through their questions which produce answers admissi- ble against a defendant. The opportunity given the jury to ask questions creates a very great risk that inadmissible evidence may be adduced against the defendant. To the detriment of a defendant, jurors who are allowed to ask questions have a tendency to begin making up their mind before they have retired to the jury room and before they have begun discussing the evidence with the other jurors. As a direct result of the district court inviting jury ques- tions, a defendant is prejudiced by being forced to risk alienating jurors by having to object to preserve the record or to allow the questioning to proceed. Lastly, the Federal Rules of Civil and Criminal Procedure and the Federal Rules of Evidence restrict the interrogation of witnesses to the parties and to the Court. The Court of Appeals in this case simply ignores the constitutional aspects of this prejudicial practice of allowing jurors to ask questions. CONCLUSION The Petitioner respectfully requests this Court to grant certiorari to address the important Fourth Amend- ment issue raised in the Petition. The decision of the 28 Court of Appeals creates a new exception to the require- ment of a warrant for government seizures in the com- mercial setting that is in conflict with this Court’s prior holdings and will continue to cause confusion in the circuits. The Petition for Certiorari should be granted on the issue of juror questioning because numerous courts, both federal and state, have considered the question with con- flicting results. In the criminal case, this practice takes on constitutional dimensions and is inherently prejudicial. The lower courts need guidance on this important ques- tion and Petitioner respectfully urges the Court to grant his Petition. Dated: December 24 1992. Respectfully submitted, LigBeN, DAHLK, WHITTED, HOUGHTON, SLOWIACZEK & JAHN, P.C. SANDRA L. DoucGHERTy* (16823) 100 Scoular Building 2027 Dodge Street Omaha, Nebraska 68102 (402) 344-4000 Attorney for Petitioner “Counsel of Record A-1 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 91-3794 United States of America, Appeal from the a United States Plaintiff — Appellee, ‘ District Court v. , for the Dennis Welliver District of Nebraska. Defendant - Appellant. Submitted: May 15, 1992 Filed: October 1, 1992 Before MCMILLIAN, JOHN R. GIBSON, and BEAM, Cir- cuit Judges. JOHN R. GIBSON, Circuit Judge. Dennis Welliver was charged with a multi-count indictment in connection with the filing of certain accounting reports with the Federal Crop Insurance Cor- poration (FCIC). A jury convicted him of two counts of mail fraud, in violation of 18 U.S.C.A. § 1341 (West Supp. 1992), two counts of making false statements to the FCIC, in violation of 18 U.S.C.A. § 1014 (West Supp. 1992), two counts of theft, in violation of 18 U.S.C. § 641 (1988), and three counts of wire fraud, in violation of 18 U.S.C.A. A-2 § 1343 (West Supp. 1992). Welliver appeals, claiming that: (1) the district court erroneously allowed illegally obtained evidence; (2) the evidence was insufficient to support his conviction; (3) the district court should not have allowed the jurors to question witnesses; and (4) he was the victim of selective prosecution. We affirm the judgment of the district court.! The FCIC, an agency of the United States Department of Agriculture, provides farmers with multiple peril crop insurance through reinsurance agreements with private insurance companies. The private companies sell and ser- vice the crop insurance policies, collect premiums, and settle claims. The FCIC reimburses the companies for their administrative expenses and for losses paid out to farmers. Reimbursements are based on monthly reports the private insurance companies are required to compile, certify as “complete and correct,” and send to Crop Hail Insurance Actuarial Association. Crop Hail processes the reports for the FCIC, edits them for accuracy, and notifies the company of any errors. Crop Hail creates a monthly accounting report, and sends it to the company, which in turn sends it to the FCIC to receive payment. Omaha Indemnity Company and Omaha Property and Casualty Company entered into standard reinsurance agreements with the FCIC. Welliver, the sole proprietor of Omaha All Risk Insurance Services in Lexington, Nebraska, was the managing general agent for these com- panies, and was responsible for conducting all daily 1 The Honorable Warren K. Urbom, Senior United States District Judge for the District of Nebraska. A-3 transactions with the insureds and the FCIC. Managing general agents are bound by all the FCIC rules and regu- lations applicable to the reinsured companies themselves. Welliver was also the sole proprietor of Nebraska Computer and Financial Services, a company that did the accounting and computer work for Omaha All Risk. Terry Anderson was Welliver’s director of computer opera- tions. Evelyn Tuma, a computer programmer for Nebraska Computer and Financial Services, created, maintained, and tested computer programs and assisted with various computer operations and Crop Hail trans- missions. In May 1987, Welliver met with Tuma and Anderson to discuss the delayed entry of Omaha All Risk’s 1987 premium information into their computer system, which delayed reporting to the FCIC and held up reimburse- ment. Welliver asked them to “roll over” 1986 premium information and submit it to Crop Hail as current 1987 information. Welliver asked Anderson to maintain a list- ing of the rolled over policies. Tuma wrote a program and rolled over the policies as Welliver had instructed. In March 1988, Welliver again met with Tuma and Anderson and discussed “doubling” approximately $80,000 of losses on Crop Hail reports by changing the “seed code.” This could be done by running an existing reported loss that had cleared the Crop Hail edits through the system a second time under a different code to report it as a senarate, additional loss. Anderson dou- bled a loss from a California insurance policy, and Tuma also doubled losses at Welliver’s direction, including two from Colorado and California policies in April 1988. A-4 In 1988, Gary Diers, a special agent for the Office of the Inspector General of the United States Department of Agriculture, began investigating Omaha All Risk regard- ing a matter unrelated to this case. He contacted Evelyn Tuma and met with her on May 26, 1988. Diers showed Tuma his badge and a piece of paper listing the penalties for aiding and abetting. He told her she was not in any trouble, she did not need a lawyer, and he simply wanted to ask her some questions about Omaha All Risk. Tuma eventually told Diers about the rollovers and described certain documents at Omaha All Risk that would consti- tute evidence of the practice. Diers asked Tuma to retrieve these documents for him, but Tuma had reserva- tions. Diers assured her that as long as the documents were not under “lock and key” and were not “something [she] shouldn’t be looking at any way,” she had a right to obtain them. Tuma, still unsure about the propriety of taking the documents out of the office, contacted the local county sheriff, who told her that he thought it was within her rights to take the documents. Tuma went to Omaha All Risk and retrieved a number of documents from Terry Anderson’s desk drawer, which both she and Anderson used. Tuma also later gave additional documents to Diers. These documents were used to prepare search warrants for Omaha All Risk’s Nebraska and Texas offices, which were executed October 25, 1988. A grand jury charged Welliver and Paul Buchanan jr., Omaha All Risk’s Texas branch manager, with various counts of mail fraud, wire fraud, false statements, theft, and conspiracy in connection with their dealings with the FCIC. At trial, Welliver moved to suppress the records A-5 Tuma turned over to Agent Diers. The district court denied the motion, concluding that Tuma was not an agent of the government and Welliver had no expectation of privacy in the documents. The jury acquitted Buchanan, but could not reach a unanimous verdict against Welliver. The district court dismissed the conspir- acy count against Welliver and declared a mistrial on the remaining counts. At his second trial, Welliver again moved to suppress the documents Tuma had taken, and the district court denied the motion. The jury convicted Welliver on all counts. The district judge sentenced Welliver to three years probation and six months of home confinement. He ordered Welliver to perform 600 hours of community service, pay a fine of $23,174.61, and make restitution in the amount of $7,724.87. Welliver filed this appeal. I. Welliver argues that the district court erred in deny- ing his motion to suppress the business records? Tuma seized and all the testimony concerning the records because the seizures violated his Fourth Amendment ? The records at issue are as follows: An internal Omaha All Risk computer print-out which Anderson created and used to change the seed code for doubling losses; Tuma’s handwritten notes on the policies she used to double losses; a computer print-out Tuma created of the raw data pertaining to doubling; a print-out of the program Tuma created to roll over 1986 policies into the 1987 year; computer print-outs of policies that Tuma rolled over and sent to Crop Hail Insurance; and a computer print-out containing a comprehensive listing of the policies Omaha All Risk rolled over. A-6 rights. One claiming a Fourth Amendment violation must show that: (1) he had a legitimate expectation of privacy, and (2) that expectation was invaded by government action. Smith v. Maryland, 442 U.S. 735, 740 (1979). We first consider whether Welliver had a legitimate expectation of privacy in the records Tuma seized. This is a two-part inquiry: (1) whether Welliver asserted a sub- jective expectation of privacy, a question of fact; and (2) whether Welliver’s subjective expectation is objectively reasonable, a question of law. United States v. Kiser, 948 F.2d 418, 423 (8th Cir. 1991), cert. denied, 112 S. Ct. 1666 (1992) (relying on Smith, 442 U.S. at 740, and California v. Ciraolo, 476 U.S. 207, 211 (1986)). The Supreme Court first enunciated this test in Katz v. United States, 389 U.S. 347, 351, 353 (1967). Under Katz, the first question involves determining whether the person, by her conduct, has demonstrated an actual expectation of privacy, id. at 361 (Harlan, J., con- curring), or sought to preserve something as private. Id. at 351-52. The second question involves deciding whether the individual’s asserted privacy interest is legitimate, i.e., “one that society is willing to recognize as ‘reason- able.’ ” Id. at 361 (Harlan, J., concurring). In United States v. Hendrickson, 940 F.2d 320 (8th Cir.), cert. denied, 112 S. Ct. 610 (1991), we stated that “[t]he test for legitimacy is not whether an individual chooses to conceal his or her activity, but instead ‘whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment.’ ” Id. at 322 (quoting Ciraolo, 476 U.S. at 212). We concluded that this “ultimate ques- tion under Katz ‘is a value judgment.’” Id. (citations omitted). A-7 The district court relied on two cases involving employees who have turned their immediate employer's business records over to the government: United States v. Ziperstein, 601 F.2d 281 (7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980), and United States v. Miller, 800 F.2d 129 (7th Cir. 1986). In Ziperstein, the defendant owned medical clinics that received Medicare and Medicaid funding and two com- panies that handled the Medicare and Medicaid billing. 601 F.2d at 284. He argued that the district court erred in failing to suppress certain records he claimed one of his employees, a pharmacist, had “stolen” and turned over to the govern- ment.? Id. at 288. The Seventh Circuit heid that the defendant had no legitimate expectation of privacy in the documents. Id. at 289. The court relied on Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), which states that “[{w]hat [employees] observe in their daily functions is undoubtedly beyond the employer’s reasonable expectation of privacy.” Ziperstein, 601 F.2d at 315. The court in Ziperstein reasoned that phar- maceutical prescriptions came within the pharmacist’s daily observations, and accordingly, there was no impropriety in his “obtaining control over the records which serve[d] as the basis of his daily activities.” Id. at 289. ° The defendant also claimed that the pharmacist was act- ing as an agent of the government in obtaining these records. 601 F.2d at 288. The Seventh Circuit rejected this theory because the employee initiated contact with the government to report evidence of wrongdoing in one of defendant's clinics, obtained the documents legitimately, and gave the documents to the FBI on his own volition. Id. at 289. Our disposition of Welliver’s case on the grounds of legitimate expectation of privacy, see infra at 10 [A-11], makes it unnecessary to discuss the government agent issue. A-8 Seven years later, the Seventh Circuit faced a similar issue in Miller. An employee, refusing his employer’s request that he hide business records at his home, con- tacted the authorities and suggested that they imme- diately come to the clinic, ask for the records, and have a subpoena. Miller, 800 F.2d at 131-32. The authorities did so. Id. at 132-33. The district court in Miller found that all the clinic employees had access to the records and none of the records were kept in restricted or private areas. Id. at 131. Further, the employee had access to the employer’s premises, permission to use all the records there, and did, in fact, use many of them on a regular basis. Id. at 131-32. The district court denied the defen- dant’s motion to suppress. Id. at 133. In its Fourth Amendment inquiry, the Seventh Circuit focused on whether the employee was the custodian of the records. Id. Discussing agency principles of actual and apparent authority, the court cited Marshall regarding “what ‘employees observe in their daily functions.’ ” Id. at 134 (quoting Marshall, 436 U.S. at 315). The court held that the district court’s findings of fact indicated that the employee had actual authority to turn over the records. Id. The court pointed out, however, that the employer’s order to hide the records expressly limited the employee’s authority. Id. at 134-35. It acknowledged that the employer asserted a subjective expectation of privacy in the documents, but held that his order to the employee constituted an unacceptable request to obstruct justice. Id. at 135. The court upheld the district court’s denial of the motion to suppress, concluding that the employee’s authority to dispose of the records defeated the employer’s Fourth Amendment claim. Id. A-9 Although both Ziperstein and Miller relied on Mar- shall, we are not convinced it is dispositive of the issue before us. Certainly, Marshall mentions that the observa- tions of employees in their daily functions are beyond an employer’s reasonable expectation of privacy, 436 US. at 315, but it does not treat this issue in detail. It is also true that neither Ziperstein nor Miller analyzed the facts under the two part subjective and objective expectation of pri- vacy Katz test. The district court in this case did not specifically discuss Welliver’s subjective expectation of privacy. This, however, is similar to California v. Ciraolo, 476 U.S. at 211, in which the Supreme Court found it unnecessary to address the subjective expectation of privacy question because the finding on that issue had not been chal- lenged. Likewise, although the district court made no finding on this issue and seems to have assumed it, the government has not challenged Welliver’s subjective expectation, and there is evidence in the record to sup- port a subjective expectation of privacy finding. The determinative issue, however, is whether the subjective expectation of privacy was reasonable, and in this respect, the district court concluded: I think it’s true that there was no reasonable expectation of privacy in the information con- tained in these documents. It was expected that the information contained in these documents, or much of it, would be sent to [Crop Hail]. . . . The fact that not all of the information would likely go any place doesn’t retain for the whole the expectation of privacy. As far as I can tell it’s probably true that the only information A-10 on the documents that would not be revealed to some outside person or company or agency was the fact that this really was 1986 information rather than 1987. . . . But the rest of it was expected to go some place, whether in detailed form or in summary form. I think that ruins the claim of a reasonable expectation of privacy. The presence of the reinsurance agreement is not irrelevant. .. . [I]t has to do with whether there was a reasonable expectation that these documents, information in the documents would be kept private. And it militates in the direction of nonprivacy. Suppression Hearing Transcript at 123-24. We are con- vinced that the district court did not err in ruling that Welliver had no objectively reasonable expectation of pri- vacy in the documents. Therefore, under Ciraolo, which accepted and assumed a subjective expectation of privacy but found that it was not objectively reasonable, 476 U.S. at 212-15, we must reject Welliver’s argument that the evidence should have been suppressed. Much testimony at the suppression hearing focused on whether the documents were for internal purposes only or whether they would be sent to Crop Hail and the FCIC. The reinsurance agreement resolves the issue. A provision of the agreement states: Access to Records and Operations The Company must provide FCIC, USDA, and the Comptroller General of the United States and their authorized representatives, for the purpose of investigation, audit, or examination, access to any record or operation of the Com- pany. The Company must keep records that A-11 fully disclose all matters pertaining to this Agreement, including premiums and claims paid or payable under this Agreement. Records relating to premiums must be retained and available for three (3) years after final adjust- ment of such premiums, and records relating to reinsurance claims shall be retained and avail- able for three (3) years after final adjustment of such claims. Under this provision, the FCIC and other federal govern- ment entities had the right to inspect any company records. Although Welliver argues that his company, as merely a managing general agent, was not a party to the reinsurance agreement with the FCIC, Timothy Hoffman, the FCIC’s director of the Kansas City, Missouri compli- ance office, testified that managing general agencies are bound by the same rules and regulations as the reinsured companies. Even if Welliver subjectively asserted his expectation of privacy in the documents at issue, that expectation was clearly unreasonable, as he was obli- gated to give the FCIC “access to any record or operation of the Company” “for the purpose of investigation, audit, or examination.” Because of this holding, we need not determine whether Tuma was an agent of the government when she procured the records for Agent Diers. We con- clude that the district court did not err in denying Well- iver’s motion to suppress. Il. Welliver argues that the evidence was insufficient to support his conviction. Although he admits that he “does not challenge the fact that the government evidence. A-12 established that the ‘doubling’ and ‘rollover’ did occur,” he contends that there was insufficient evidence of his criminal intent. In reviewing the denial of a motion for acquittal, we view the evidence in the light most favorable to the government, giving it the benefit of all reasonable infer- ences from that evidence. Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Long, 952 F.2d 1520, 1524-25 (8th Cir. 1991). We will reverse only if the jury must have entertained reasonable doubt as to the defendant’s guilt. United States v. Jones, 880 F.2d 55, 64 (8th Cir. 1989). Welliver’s argument hinges on witness credibility and slight inconsistencies in the testimony of Evelyn Tuma and Terry Anderson. Our review of the record shows that there was sufficient evidence to demonstrate Welliver’s intent to commit the rollovers and doubling. Both Tuma and Anderson testified that in May 1987 they met behind closed doors with Welliver, who asked them to roll over the 1986 premium information and submit it to Crop Hail as current 1987 information. Both of them recalled that Welliver had gotten the idea from other companies that were employing the process. They said that Welliver wanted to get premium information reported sooner so “we could get our commission, our money back sooner.” Tuma wrote the program and used it to roll over policies at “Dennis’s instructions.” Although Welliver argues that problems getting information to pass through Crop Hail’s edits motivated the rollovers, both Tuma and Anderson testified that the situation was created by Omaha All Risk’s own inability to process information so it could be reported to Crop A-13 Hail. Tuma testified that Welliver had stated that he did not believe the rollover process was “quite Kosher.” When the rollover process created a large error list, Well- iver commented to Anderson and Tuma that they “couldn’t even cheat right.” Anderson testified that in March 1988 Welliver met with him and Tuma and discussed how to double certain losses on Crop Hail reports by changing the seed code. Welliver specifically told them that he wanted to double approximately $80,000 of losses. Although Tuma could not specifically recall a meeting taking place in March 1988, she remembered a number of meetings regarding doubling. She doubled losses several times after discus- sions with Welliver and specifically recalled doubling certain Colorado and California losses in April 1988 at his direction. Even if Welliver properly blames the Crop Hail edit system for his resort to doubling losses, his argument is premised on the assumption that he was entitled to sub- mit false information to FCIC through Crop Hail to com- pensate for processing problems. The reinsurance agreement, which Welliver was bound by, clearly forbade such a practice, as it required that all reports submitted to the FCIC be “complete and correct.” Regardless of Welliver’s stated motivations, there was sufficient evidence for the jury to conclude that he intentionally directed his employees to submit false infor- mation to Crop Hail and the FCIC and, therefore, suffi- cient evidence to support his conviction. A-14 IIl. Welliver also argues that the district court erred in allowing the jurors to question the witnesses at trial. Welliver, however, failed to make a single objection dur- ing the jury questioning. Accordingly, we review only for plain error. United States v. Land, 877 F.2d 17, 19 (8th Cir.), cert. denied, 493 U.S. 894 (1989). Welliver makes lengthy policy arguments against allowing the practice of jury questioning. His specific complaints, however, involve the court’s refusal to allow witnesses to answer two questions that Welliver claims were favorable to his defense. The district court rejected both of these questions on relevancy grounds. We must therefore conclude that the district court did not plainly err in allowing juror interrogation of witnesses. Nevertheless, we state once again that we have strong concerns about juror questioning of witnesses. In this case, the potential for error was magnified as the questions were propounded before other jury members. In at least three cases, members of this court have voiced strong objections to this practice. United States v. Gray, 897 F.2d 1428, 1429-30 n.1 (8th Cir. 1990) (Judges Bow- man, Beam, and Henley); United States v. Johnson, 892 F.2d 707, 711-15 (8th Cir. 1989) (Judges Lay and McMillian concurring and stating that juror questioning is “inher- ently prejudicial and should not be condoned”); United States v. Land, 877 F.2d at 19 (Judges Arnold, Bowman, and Magill). These decisions in which seven, now eight, of the judges of this court have joined make evident that juror interrogation of witnesses presents substantial risk of reversal and retrial. Where a record is properly made A-15 and the record permits a conclusion that prejudice occurred, this will be the inevitable result. IV. Finally, Welliver claims the district court erred in failing to grant him a hearing on his motion to dismiss on the ground of selective prosecution. A defendant has a heavy burden in proving a selective prosecution claim, United States v. Eklund, 733 F.2d 1287, 1290 (8th Cir. 1984), cert. denied, 471 U.S. 1003 (1985), and must meet a two- part test for a prima facie claim. Id. The defendant must first show that the government has singled him out for prosecution, while failing to prosecute others similarly situated who engaged in similar conduct. Id. Second, he must show that the government based its discriminatory selection on an impermissible ground such as religion, race, or exercising the right of free speech. Id. A district court should grant a hearing on a defen- dant’s selective prosecution claim if the defendant alleges “sufficient facts to take the question past the frivolous state,” United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978), and raises a reasonable doubt about the prosecu- tor’s purpose. Id. Without these showings, it is presumed that the government prosecuted the case in good faith and in a nondiscriminatory way pursuant to its duty to bring offenders to justice. Eklund, 733 F.2d at 1291. The district court determined that Welliver met the first part of the prima facie test, but failed the second. Specifically, Welliver’s claims that the government pros- ecuted him because he criticized the FCIC were unsup- ported by factual allegations sufficient to raise a A-16 reasonable doubt as to the government’s motives. The record demonstrates that the district court did not err in so holding, and we affirm its denial of Welliver’s motion to hold a hearing on this matter. We affirm the district court’s judgment. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. takeing A-17 DISTRICT COURT’S ORAL RULINGS THE COURT: It is a very interesting subject and I wish I had more time to work on it. But I have to do the best I can with our limited amount of time. Of course, we’re governed by the Fourth Amendment and, which is to say that no unreasonable searches or seizures will be made. And there’s a number of questions arise under that constitutional amendment as to the (sic) whether there was a seizure, whether there’s a search, whether whatever was done was unreasonable if there was a search or a seizure. The only two cases that I’ve been able to find that have similarity are United States versus Miller, M-i-l-l-e-r, 800 Federal 2nd 129, Seventh Circuit, 1986, and United States versus Ziperstein, Z-i-p-e-r-s-t-e-i-n, 601 Federal 2nd 1281, 1979. First, with respect to Mr. Naylor’s argument that you can’t say Mr. Welliver gave a consent, I think consent is not the issue. Question under constitutional analysis is rather in this situation whether there was an expectation of privacy. A reasonable expectation of privacy, which is different from consent. And, related, but they’re different. And, of course, consent would end the inquiry. But there also is the issue of reasonable expectation of privacy. I don’t think I can say there was consent in ihe sense that Mr. Welliver knew that these documents, these par- ticular exhibits were going to be sent to somebody. That would be unrealistic. A-18 On the other hand, | think it’s true that there was no reasonable expectation of privacy in the information con- tained in these documents. It was expected that the infor- mation contained in these documents, or much of it, would be sent to CHIAA. CHIAA would send it back and then at least a recap of it would be sent to FCIC. The fact that not all the information would likely go any place doesn’t retain for the whole the expectation of privacy. As far as I can tell it’s probably true that the only information on the documents that would not be revealed to some outside person or company or agency was the fact that this really was 1986 information rather than 1987. That’s true, I think. Not expected to go any place. But the rest of it was expected to go some place, whether in detailed form or in summary form. | think that ruins the claim of a reasonable expectation of privacy. The presence of the reinsurance agreement is not irrelevant. [sic] Doesn’t amount to or need not amount to a consent. But I don’t think it’s irrelevant either. | think you, again, it has to do with whether there was a reason- able expectation that these documents, information in the documents would be kept private. And it militates in the direction of nonprivacy. If there was no reasonable expectation of privacy then it doesn’t matter whether Miss Tuma was an agent of the government or whether she was her own private person and an employee of Mr. Welliver’s company only. I don’t think she was an agent of the government. I think it’s true that she was, she was impelled by two separate considerations, connected but separate, in A-19 that either could operate independently, but they both operated at once in her instance. One was that she expected that something was afoul and thought it was the right thing to do to turn the records over to an investigator. And second, that she thought that she might be accused or suspected or charged with some impropriety herself and that this would be for her own good interest to turn these things over and help her side. And I think both those interests impelled her. I don’t know which one was predominant. I think they worked together. Does that make her an agent of the government? | don’t think so. I don’t think someone who cooperates with the government in the sense of turning over infor- mation thereby becomes an agent of the government. It’s true that she did not turn over the information on her own. I mean without any participation in that deci- sion by the government agent. Indeed, she received some encouragement from him. He requested that she return, turn this information over to him. And she did so accord- ingly. But I don’t think that makes her an agent of the government. The result of that, as I see it, is that there was no seizure or search by the government. I think I shall stop there. It seems to me I don’t need to make any further findings or declarations. Wonderfully interesting ques- tion. But I shall, I’m comfortable with the decision and | shall stand by it. The motion to suppress is denied. A-20 - Oh, I might, so that you don’t think I overlooked it, Exhibit 77 may be different. And that’s true, it may be different. I mean by that there was less expectation of dissemination of it. Let me think about that a moment. Mr. Welliver’s testimony was that he thought that kind of information, not that very document, would be transmitted to CHIAA. I think the document itself was kept, as Mr. Naylor pointed out, for internal use. That’s what actually happened to it. And it was particularly for Ms. Tuma’s use. There is in one of these cases cited a discussion of the matter of telling an employee not to turn over, not to take out, or I think in that instance it was just the opposite, do take out these documents so that the authorities don’t get them. And the Seventh Circuit said that won’t fly as an exception to the idea that the employer can limit the authority of the employee to turn over records. And under that kind of a declaration by the employer, the employee, employee’s turning over the records was per- fectly justifiable. Which I suppose has to do with if the reason you are seeking nondissemination is that you want this to be a covering of impropriety then you’re going to be unsuc- cessful in your Fourth Amendment argument. And this may be said to be akin to that. Exhibit 77 is a tougher one all right. But | think I shall stand by my ruling that the documents are admissible. And the motion is denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1891%3A1. Public record. Not legal advice.