JAMES F. NORTON, ET AL., PETITIONERS V. UNITED STATES OF AMERICA
No. 88-1889
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Questions Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-22) is reported at
867 F.2d 1354. An earlier opinion of the court of appeals (Pet. App.
36-44) is reported at 749 F.2d 1477. The district court's order on
petitioner's motion to suppress (Pet. App. 26-33) and its order on
remand (Pet. App. 23-25) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on March 16, 1989.
The petition for a writ of certiorari was filed on May 15, 1989. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether evidence seized in reliance on a search warrant should
have been suppressed on the ground that the description of the
property to be seized under the warrant was insufficiently particular.
2. Whether the district court's supplemental instruction to the
jury was coercive.
STATEMENT
On June 3, 1981, a federal grand jury in the United States District
Court for the Southern District of Florida issued an indictment
charging petitioners and 12 co-defendants with conspiring to conduct
the affairs of a labor union through a pattern of racketeering
activities, in violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. 1962(d). Petitioners moved to
suppress business records seized pursuant to two search warrants, and
the district court granted their motion. On the government's appeal,
the court of appeals reversed the suppression order, 749 F.2d 1477,
and this Court denied certiorari, 474 U.S. 949 (1985). A jury trial
resulted in a conviction of each of the four petitioners. /1/ Each
petitioner was sentenced to ten years' imprisonment. The court of
appeals affirmed. Pet. App. 1-22.
1. The government's proof at trial was summarized by the court
below. Pet. App. 2-3. In brief, the Laborers' International Union
(Laborers) and its affiliated local unions in Chicago and Miami
established various employee benefit plans, including the Chicago
Trust Fund and the Southeast Trust Fund. In 1970, Laborers announced
plans to provide dental care services to union members. Consultants &
Administrators, Inc. (C&A), a Chicago-based corporation, was formed to
provide those services. C&A did so by contracting with various labor
unions to provide medical, dental, and vision services to union
members through a network of clinics located in Chicago and South
Florida. Petitioner Norton was president of C&A. Petitioner
DiFranco, a dentist, and petitioner Fosco, who purportedly handled
sales and public relations, were vice-presidents of C&A. Angelo Fosco
(petitioner Fosco's father) and James Caporale were union
representatives and co-defendants. They exerted their influence to
ensure that C&A obtained the contract for dental services in exchange
for kickbacks made to them through C&A. The kickback funds were
generated by inflating petitioners' salaries (other than that of
petitioner Pinckard); the excess cash was then funneled through
Daniel Milano, Sr., another owner of C&A, to Angelo Fosco and James
Caporale.
In 1972, the operation expanded to Southeast Florida when C&A
obtained a similar contract to provide dental care to union members.
As before, C&A made kickback payments to various union representatives
in connection with the contract. Regular payoffs were made from 1973
to 1977. Pet. App. 2.
In 1974, the Chicago dental services contract was amended to
include vision services and dental services for the dependents of
union members. Union representative and co-defendant Alfred Pilotto
arranged for C&A to be awarded the expanded contract in return for a
kickback of ten per cent of C&A's increased premiums. Petitioner
Pinckard (Pilotto's son-in-law) acted as a conduit for these illegal
payments from C&A to the union officials. Pet. App. 2-3.
2. The government's investigation of petitioners' activities is
recounted in the affidavit of FBI Special Agent James Wagner, which
was submitted in support of the government's applications for the
search warrants in this case. Agent Wagner's affidavit was primarily
based on information provided by Daniel Milano, Jr., who had recently
resigned as secretary-treasurer of C&A. Afft. paras. 1a, 1b.
According to Agent Wagner's affidavit, Milano stated that his
father, Daniel Milano, Sr., the executive vice-president of C&A, had
sole authority to bid on C&A's behalf on prospective union contracts.
Afft. paras. 1a, 1f. Although all bids were supposedly sealed, Daniel
Milano, Sr., customarily met with co-defendant union leaders Alfred
Pilotto and Angelo Fosco before bidding on any contract. Afft. para.
1f. /2/ Pilotto provided Daniel Milano, Sr., with information
regarding competing bids, and both Pilotto and Fosco gave prior
approval to all of C&A's bids. Ibid. As a result of this procedure,
Daniel Milano, Sr., never authorized a bid that had not been
pre-approved and never submitted a bid on a union health care contract
that was not accepted. Ibid. In return for that favorable treatment,
C&A regularly provided kickbacks to various labor officials. Afft.
para. 1g.
Two entities -- Pinckard and Associates, Inc., which was operated
by petitioner Pinckard, and Fortune Services, Inc. -- were
incorporated to help divert revenue from C&A to finance the kickbacks.
Afft. para. 1e. Although both entities were purportedly responsible
for verifying the eligibility of persons receiving health services
from C&A under its union contracts, Afft. para. 1d, Fortune Services
in fact performed no functions whatsoever, and Pinckard and Associates
merely placed calls to the union to verify eligibility. Afft. para.
1e. Neither Fortune Services nor Pinckard and Associates had any
corporate activities other than their contracts with C&A. Afft. para.
1d. /3/
Pursuant to an agreement between Daniel Milano, Sr., and Pilotto,
Pinckard and Associates billed C&A for ten per cent of C&A's gross
monthly receipts on its union contracts, while Fortune Services billed
C&A for 15 per cent of C&A's gross receipts. Afft. paras. 1h, 1j.
With respect to Pinckard's billing, Daniel Milano, Jr., furnished
petitioner Pinckard with the figure for C&A's gross monthly receipts
in the Chicago area, which averaged $200,000 in advance of the
preparation of Pinckard's bill. Afft. para. 1h. With respect to
Fortune Services, Daniel Milano, Jr., personally drew C&A checks for
the monthly payments. In turn, Daniel Milano, Sr., delivered the
checks to co-defendant Seymour Gopman's Miami law office, from which
Fortune Services was run. Afft. para. 1j.
In addition to the diversion of funds through Pinckard and
Associates and Fortune Services, all C&A officers were required to
give $1,000 of their salaries to Daniel Milano, Sr., each month.
Daniel Milano, Sr., collected the money in cash at the beginning of
each month and kept it in envelopes in the drawer of his desk.
Thereafter, Daniel Milano, Sr., distributed the cash to co-defendant
union leaders Pilotto, Fosco, Dominick Senese, and Caporale. Afft.
para. 1k.
Based on the information obtained from Daniel Milano, Jr., about
the kickback scheme, the government decided to try to obtain access to
the records of C&A and Pinckard and Associates. The decision was made
to conduct a search of the premises of C&A and Pinckard and
Associates, rather than issue subpoenas, because Daniel Milano, Jr.,
had told Agent Wagner that there was a "strong likelihood" that the
records of the two companies would be destroyed or altered if
subpoenas were used. Agent Wagner also explained that he believed it
was necessary to examine all the records of C&A and Pinckard and
Associates in order, by comparing their books and records with the
records available through banks and other businesses, to determine how
the kickback money was generated through C&A. 2/25/82 Tr. 17;
1/31/86 Tr. 18-19. Accordingly, Agent Wagner and two attorneys from
the Chicago Organized Crime Strike Force prepared an affidavit to
accompany an application for warrants to search C&A and Pinckard and
Associates. 2/26/82 Tr. 67; 1/31/86 Tr. 29-31. Thereafter, a
federal magistrate issued separate search warrants authorizing the
search of the administrative offices of C&A and Pinckard and
Associates. Pet. App. 53-54, 55-56. /4/ Before the warrants were
executed, the federal agents examined Agent Wagner's affidavit and
twice were briefed by Agent Wagner about both the information in the
affidavit and the scope of the searches authorized by the warrants.
2/26/82 Tr. 63-64, 66, 100-101.
After searching the C&A file room and the office space occupied by
Daniel Milano Sr., Daniel Milano, Jr., and petitioners Norton, Fosco,
and DiFranco, the agents seized approximately 18 boxes of documents.
2/25/82 Tr. 41-43. In addition, the agents seized from Daniel Milano,
Sr.'s, desk drawer seven envelopes containing a total of $12,460 in
cash. In executing the C&A search warrant, the agents neither
searched for nor seized the records of any other business entity. Id.
at 37, 43-44, 53-56, 58-59; 2/26/82 Tr. 132. Thus, the agents did
not seize records of other corporations that have been tied into their
investigation that might have been on the premises. Ibid. /5/ The
agents also seized a smaller quantity of records from the office space
in the same building that was occupied by petitioner Pinckard.
3. In a pretrial ruling, the district court suppressed all
documents seized during the October 6, 1976, searches of C&A and
Pinckard and Associates. Pet. App. 26-33. The court found that the
supporting affidavit "clearly establishe(d) probable cause to search
for certain kinds of corporate records," id. at 29, but the court also
held that the authorization to seize "all corporate records" of C&A
and Pinckard and Associates was "unconstitutionally general." Id. at
32.
The court of appeals reversed. Pet. App. 36-44. The court
accepted for purposes of the appeal the district court's ruling that
the warrants were insufficiently specific, id. at 39-40 n.3, but held
that "(o)n the facts considered by the district court at the
suppression hearing," the case fit within the good faith exception to
the exclusionary rule articulated in United States v. Leon, 468 U.S.
897 (1984), and Massachusetts v. Sheppard, 468 U.S. 981 (1984). Pet.
App. 42. /6/ The court of appeals remanded the case for an
evidentiary hearing on that issue. Id. at 43-44. /7/
4. On remand, the district court found that the parties did not
adduce any new facts on the good faith issue. Pet. App. 23.
Accordingly, in light of the court of appeals' observation that the
evidence at the initial suppression hearing showed that the agents
were acting in good faith, the district court held that the documents
were admissible under Leon and Sheppard. Id. at 24.
5. The court of appeals affirmed. Pet. App. 1-22. It held that
there was "(m)ore than adequate support" for the district court's
determination that the agents' reliance on the warrants was
justifiable. Id. at 8. As the court of appeals noted, "the FBI Agent
who applied for both warrants testified that he believed he needed all
of C&A's and (Pinckard and Associates') corporate records * * * to
verify the kickback scheme." Id. at 8-9. "Because this investigation
required the authorities to piece together a 'paper puzzle' given the
permeative character of the fraud involved," the court found that "the
agent's belief was objectively reasonable." Id. at 9.
ARGUMENT
1. Petitioners challenge the court of appeals' ruling that the
agents who executed the search warrants for C&A and Pinckard and
Associates had an objectively reasonable belief that the warrants were
valid because they could reasonably have believed that it was
necessary to examine all of the records of those two companies in
order to discover the full scope of petitioners' kickback scheme.
That ruling presents no issue of general importance and thus does not
warrant review by this Court.
a. The warrant in this case was not unconstitutionally overbroad.
It is well settled that wher the underlying affidavit establishes
sufficiently broad probable cause, the warrant may authorize a
comparably broad search and seizure. See United States v. Hershenow,
680 F.2d 8947, 851 (1st Cir. 1982) ("(t)he particularly and probable
cause requiremetns of the Fourth Amendment are * * * closely
relates"); see also In re Impounded Case (Law Firm), 840 F.2d 196,
200 (3d Cir. 1988); United States v. Christine, 687 F.2d 749, 758 (3d
Cir. 1982). Courts have accordingly approved property descriptions in
search warrants that were as broad in scope as the probable cause
demonstration in the supporting affidavit. In addition, since the
scope of some forms of criminal activity can be detected only by
piecing together myriad financial documents and since officers often
do not know in advance what documents they may find, the courts have
flexibly construed the particularity requirement to allow the seizure
of generically described records. /8/
As the court below found, Pet. App. 43, this case involved
precisely the "type of complex financial fraud" that "has been held to
justify a more flexible reading of the fourth amendment particularity
requirement." The information available to Agent Wagner came from an
officer of C&A and the son of its vice-president. That information
showed that all of C&A's bids for health benefit services were made
with approval of the union officials, that the bids were prepared with
the aid of information about other bidders, and that C&A's bids were
invariably accepted. Afft. para. 1f. In addition, the affidavit
showed that Pinckard and Associates (like Fortune Services) was a sham
corporation that had been incorporated for the sole purpose of serving
as a conduit for the money received by petitioners in their kickback
scheme. C&A, whose officers were parties to the scheme, was the
central focus of the kickback operation. Daniel Milano, Sr.,
masterminded the scheme. He solicited information from local union
leaders regarding competing (and supposedly secret) bids, and he
agreed to pay a kickback to the union leaders for the information.
The kickback was based on a fixed percentage of C&A's gross receipts
from the union contracts. And Pinckard and Associates conducted at
least some of its dealings on C&A's premises out of space lent to
Pinckard and Associates by C&A. Moreover, Daniel Milano, Jr., told
Agent Wagner that there was a "strong likelihood" that C&A would
either destroy or alter its records if they were subpoenaed. Agent
Wagner was therefore entitled to infer that all of the records would
constitute evidence of the operation of the kickback scheme, as well
as C&A's close participation in it, and also that any records not
seized during the search of C&A might thereafter "disappear." Thus,
the agents cannot be faulted for believing that, in light of the
"permeative character of the fraud involved" in this case, all the
records of C&A and Pinckard and Associates were material and needed to
be seized. Id. at 9. /9/
b. Even if the warrant in this case was overly broad, the agents
acted in good faith in obtaining the warrant, and the evidence was
therefore properly held admissible under this Court's decision in
United States v. Leon, supra, and Massachusetts v. Sheppard, supra.
In Leon, this Court held that the exclusionary rule "cannot be
expected, and should not be applied, to deter objectively reasonable
law enforcement activity." 468 U.S. at 919. That is particularly
true, the Court noted, "when an officer acting with objective good
faith has obtained a search warrant from a judge or a magistrate and
acted within its scope." Id. at 920. The Court reasoned that, in such
circumstances, the deterrent value of the exclusionary rule is
vitiated by the fact that an officer cannot be expected to question
the magistrate's probable-cause determination or his judgment that the
form of the search warrant is technically sufficient. Id. at 921.
This Court applied that exception in the companion case of
Massachusetts v. Sheppard, supra, to a search warrant that
insufficiently described the items to be seized. In Sheppard, the
trial judge suppressed evidence seized during the execution of a
search warrant that incorrectly identified the items to be seized as
evidence of a narcotics transaction, rather than a murder. Relying on
Leon, this Court reversed, emphasizing that the officers had
demonstrated their good faith by submitting an affidavit to a judge
and thereafter relying on the judge's determination that the warrant
he issued was sufficiently particularized. 468 U.S. at 989-991. See
also Illinois v. Krull, 480 U.S. 340 (1987) (applying Leon to a state
law, later held invalid, that authorized a warrantless search, even
though the statute could have been more narrowly drawn).
The same considerations that prompted this Court to apply the good
faith exception in Leon, Sheppard, and Krull are also present here.
As the courts below concluded, it was "not so obvious" that the
property descriptions in these two warrants were unconstitutionally
overbroad on the facts of this case. The requirement that a warrant
contain a particularized description of the property to be searched
includes "a practical margin of flexibility" depending on the facts of
each case. United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.
1982) (collecting cases), cert. denied, 464 U.S. 814 (1983). That is
especially true in cases "involving complex financial transactions and
widespread allegations of various types of fraud." Ibid. See also
United States v. Abrams, 615 F.2d 541, 548 (1st Cir. 1980) (Campbell,
J., concurring) ("(t)he need for particularization gives rise to a
dilemma in fraud investigations," because the agents "usually do not,
and often cannot, know in advance precisely what they will find when
they search through files pursuant to a warrant."). As this Court has
recognized with respect to the particularity requirement, "the
complexity of an illegal scheme may not be used as a shield to avoid
detection when the State has demonstrated probable cause to believe
that * * * evidence of (a) crime is in the suspect's posession."
Andresen v. Maryland, 427 U.S. 463, 480-481 n.10 (1976).
In this case, the agents "took every step that could reasonably be
expected of them." Sheppard, 468 U.S. at 989. Agent Wagner prepared
an extensive affidavit that detailed a pervasive fraudulent scheme and
that, as the district court noted Pet. App. 29, "clearly
establishe(d)" probable cause to search for a broad range of corporate
documents. Thereafter, the affidavit was reviewed by two government
attorneys before it was submitted to the magistrate. And the
magistrate found probable cause to justify the searches and approved
the adequacy of the description of the property to be seized. See,
e.g., United States v. Michaelian, 803 F.2d 1042, 1047 (9th Cir.
1986); United States v. Fama, 758 F.2d 834, 837 (2d Cir. 1985).
Moreover, even if the unattached affidavit cannot be used to cure any
possible overbreadth in the warrants, the agents' use of the extensive
affidavit as the basis for the pre-search briefings should be
considered as evidence of their good faith under Leon. Cf. United
States v. Luk, 859 F.2d 667, 677 (9th Cir. 1988). See also United
States v. Wuagneux, 683 F.2d at 1351 n.6. Finally, the agents
evidenced their good faith by confining the scope of their searches to
the parameters of the warrants and declining to seize records of other
corporate entities found on the premises. See United States v. Luk,
859 F.2d at 677-678. In short, the two 1976 warrants in this case
were not so "facially deficient" that the executing officers could not
have reasonably presumed that the warrants were valid. Leon, 468 U.S.
at 923. See United States v. Luk, supra; United States v. Kepner,
843 F.2d 755, 763-764 (3d Cir. 1988); United States v. Diaz, 841 F.2d
1, 6 (1st Cir. 1988); United States v. Gros, 824 F.2d 1487 (6th Cir.
1987); United States v. Buck, 813 F.2d 588, 592-593 (2d Cir.), cert.
denied, 108 S. Ct. 167 (1987); United States v. Michaelian, 803 F.2d
at 1046-1047; United States v. Weinstein, 762 F.2d 1522, 1531 (11th
Cir. 1985), cert. denied, 475 U.S. 1110 (1986).
Because the district court found and the court of appeals assumed
that the two warrants were overbroad, petitioners contend that the
reasonable mistake exception adopted in Leon is inapplicable in this
case. Pet. 9-18. That argument reads too much into Leon. Leon held
that suppression is appropriate when a search warrant is so facially
deficient in failing to particularize the things to be seized that the
executing officer could not reasonably presume that the warrant is
valid. 468 U.S. at 923. But Leon did not hold that the good faith
exception is inapplicable simply because a warrant is later found to
be overbroad. Instead, whether the exception will apply "depend(s) on
the circumstances of the particular case." Ibid. In this case, the
permeative character of the fraud and the need to prevent the possible
destruction of C&A's and Pinckard and Associates' records justified
Agent Wagner's belief that all of their records were relevant and
therefore that the two warrants were not overbroad. The court of
appeals' ruling therefore is consistent with the inquiry required by
Leon.
Petitioners also contend that the Ninth and First Circuits have
ruled that the exception adopted in Leon is inapplicable to overbroad
search warrants "as a matter of law." Pet. 10. That claim is
mistaken. Although those courts may have followed such an approach at
one time, /10/ subsequent decisions by those courts have shown that
they examine this question on the facts of each case and that they
have held that Leon is not inapplicable simply because a warrand is
later found to be overbroad.
For example, in United States v. Luk, 859 F.2d 667 (9th Cir. 1988),
the warrant, which authorized law enforcement officers to seize a
broad range of corporate documents stored at the defendant's home, was
held "unconstitutionally overbroad." Id. at 676 & n.6. The court
nevertheless refused to suppress the evidence, noting that the
officers had reasonably relied on the warrant. As the court
explained, the warrant was supported by a 22-page affidavit that
"related the results of an extensive investigation." Id. at 677.
Although the affidavit could not cure the overbroad warrant, the court
found that the affidavit was "evidence of good faith," because it
"provided the particularity that the warrant lacked" and because the
officers relied on the affidavit in conducting their search. Id. at
677-678.
Likewise, in United States v. Michaelian, 803 F.2d 1042 (9th Cir.
1986), the warrants for a broad range of personal and business records
were found to be impermissibly general "in light of the lengthy IRS
investigation and detailed knowledge provided (to the agents by
certain informants)." Id. at 1046 n.1. The court of appeals applied
the good faith exception, however, finding that the warrants did not
"approximate the degree of facial deficiency which would preclude
objective reasonable reliance by federal agents," id. at 1047, even
though the warrants could have been more specific. See also Center
Art Galleries -- Hawaii, Inc. v. United States, 875 F.2d 747, 753 (9th
Cir. 1989) (noting that Leon applies unless "(t)he warrants were so
overbroad that * * * no agent could reasonably rely on them").
The First Circuit has followed a similar course. In United States
v. Fuccillo, 808 F.2d 173, cert. denied, 482 U.S. 905 (1987), that
court refused to apply the good faith exception on two grounds: the
agents who executed the warrant exceeded the scope of the warrant (by
seizing men's clothing as well as women's clothing, even though the
warrant only authorized seizure of the latter), and the agents did not
take "'every step that could reasonably be expected of them'" in
describing the items to be seized. 8098 F.2d at 177-178 (citation
omitted). After Fuccillo, however, the First Circuit in United States
v. Diaz, 841 F.2d 1, 6 (1988), applied Leon in the context of a search
conducted in reliance on a warrant later found to be overbroad. /11/
Accordingly, it now appears that the First Circuit, like the Ninth
Circuit, examines each case on its facts and does not regard the Leon
doctrine as per se inapplicable to overbroad warrants.
Petitioners claim that the Tenth Circuit has held that Leon is
inapplicable to overbroad warrants, but the case they cite, United
States v. Leary, 846 F.2d 592 (1988), did not adopt any such rule.
Leary found overbroad a warrant that authorized the seizure of all
"records and correspondence" relating to the illegal exportation of
arms, even though the affidavit supporting the warrant disclosed
probable cause as to a single, readily identifiable illegal
transaction. Id. at 600-606. The court noted that the case
"present(ed) a different factual situation" than that in United States
v. Buck, 813 F.2d at 609-610, where the court relied on Leon even
though the warrant was insufficiently particularized. /12/ The court
held that the officers could not reasonably have relied on the warrant
in Leary, because the expansive description of the property to be
seized bore no relationship to the limited probable cause showing. In
so holding, the court did not purport to rule that officers may not
rely in good faith on an overbroad warrant; it merely held that the
officers' reliance was unreasonable on the facts of that case.
Thus, the difference between the result below and the results in
the cases cited by petitioners turns on a difference in the facts, not
a disagreement over the relevant legal principles. While petitioners
are correct that some of post-Leon decisions of various circuits
conflicted at one time with the approach taken here and in Buck, /13/
that conflict now apppears to have abated as the cirtuits have
continued to address this subject. Subsequent case law has shown that
the First and NInth Circuits now resolve Leon claims in this context
on a case-by-case basis and have eschewed any per se rule that
officers cannot be found to have reasonably relied on a warrant that
is later found to be overbroad.
2. Petitioners contend (Pet. 19-26) that the district court's
supplemental charge coerced the jury into returning a guilty verdict.
That claim stems from the following facts:
On the morning of the second day of the jury's deliberations, juror
Robert Larson sent a note to the district court. In the note, Larson
said that, unlike the other 11 jurors, he had a reasonable doubt as to
petitioners' guilt, and he asked to be relieved of jury duty because
he was uncomfortable with the prospect of causing a mistrial. Pet.
App. 18-19 & n.11. The district court consulted with defense counsel
about the proper response to the note. Petitioners moved for a
mistrial and opposed giving the jury an Allen charge. /14/ Gov't C.A.
Br. 54, citing 92 R. 40-47. The district court denied the defense
motion for a mistrial but agreed not to give an Allen charge. The
court then addressed juror Larson out of the presence of the other
jurors. The court told Larson that he would not be replaced by an
alternate juror, but also told Larson that he was "absolutely,
unequivoca(lly)" not required to vote with the majority, "even under
duress." The court then delivered a supplemental instruction to the
jury in which the court reminded the jurors of their duty to consult
with each other, to deliberate in an effort to reach a unanimous
verdict if it was possible to do so without doing violence to their
individual judgments, and to be willing to reconsider their views.
Pet. App. 19 n.12. The court also emphasized, however, that the
jurors should "not surrender your honest conviction as to the weight
or effect of the evidence solely because of the opinion of your fellow
jurors or for the mere purpose of returning a verdict." Ibid.
Petitioners renewed their motion for a mistrial, which the district
court denied. Four hours later, the jury returned a guilty verdict.
Pet. App. 21.
Petitioners do not (and could not) claim that the supplemental
instruction was itself coercive. /15/ Instead, relying on Brasfield
v. United States, 272 U.S. 448 (1926), petitioners argue that the
supplemental instruction was coercive because the district court was
aware of the jury's numerical division as a result of juror Larson's
note. This case, however, is materially different from Brasfield.
There, the trial judge asked the foreman how the jury stood
numerically. Upon learning that the jury stood nine to three, the
trial court delivered an Allen charge. This Court reversed, holding
that a trial court should not ask a deadlocked jury for its numerical
division, since that inquiry is potentially coercive and "serves no
useful purpose that cannot be attained by questions not requiring the
jury to reveal the nature or extent of its division." 272 U.S. at 450.
In this case, by contrast, the trial court did not ask the jury
where it stood on the defendants' guilt or innocence. Juror Larson
volunteered that information in the note he sent to the judge asking
for guidance. That difference is critical. Underlying the ruling in
Brasfield is the belief that the combination of a trial court's
inquiry into the jury's numerical division and the use of a
traditional Allen charge (i.e., one that focuses on the jurors in the
minority) might coerce those jurors in the minority to abandon their
views simply to achieve unanimity. That risk was not present here.
In response to juror Larson's note, the court told Larson in the
strongest possible terms that he was under no obligation to abandon
his honestly held views, and petitioners do not challenge those
remarks. The court's subsequent use of a modified Allen charge,
therefore, was not likely to have intimidated Larson. Indeed, the
fact that the court gave the charge to the entire jury panel could
well have eased Larson's mind by formally instructing the other jurors
that Larson was under no obligation to "surrender (his) honest
conviction * * * solely because of the opinion of (his) fellow jurors
or for the mere purpose of returning a verdict." Pet. App. 19 n.12.
Finally, the fact that the jury deliberated for approximately four
hours after the trial court gave the instruction is evidence that the
instruction did not coerce juror Larson into abandoning his views.
/16/ For similar reasons, the courts of appeals have held that the
rule of automatic reversal adopted in Brasfield does not apply when
information regarding the jury's division is not solicited by the
judge, but is volunteered by the jurors. /17/
There is no conflict among the circuits on this issue. Petitioners
maintain (Pet. 20-21) that the decision below conflicts with the Ninth
Circuit's decision in United States v. Sae-Chua, 725 F.2d 530 (1984),
but that decision is distinguishable. There, the jury foreman
revealed to the court that a majority favored guilt, but that one
juror favored acquittal. After polling the jury on the question
whether further deliberations would be useful, the district court gave
a modified Allen charge. 725 F.2d at 531. In reversing the
conviction, the Ninth Circuit found that, under the circumstances of
that case, the combination of the foreman's note and the poll of the
jury tended to identify and isolate the sole dissenter, and that the
modified Allen charge was likely to coerce that juror. Id. at 532.
By contrast, in this case it was juror Larson himself who volunteered
both the jury's division and his status as the lone dissenter, and the
court's supplemental instruction simply reaffirmed what the court had
already made clear to Larson -- that he was not required to abandon
his sincere convictions. /18/ Lowenfield v. Phelps, 108 S. Ct. 546,
552 (1988), held that the coercive effect of a trial court's actions
must be assessed on a case-by-case basis. /19/ As in Lowenfield, the
facts in this case do not warrant an inference of coercion. /20/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S. G. DENNIS, JR.
Assistant Attorney General
ROBERT J. ERICKSON
Attorney
JULY 1989
/1/ An earlier trial ended in a mistrial due to the exposure of the
jury to extraneous materials during deliberations. A separate trial
resulted in the conviction of eight other co-defendants; those
convictions were upheld on appeal. United States v. Caporale, 806
F.2d 1487 (11th Cir.), cert. denied, 483 U.S. 1021 (1987).
/2/ Pilotto was both president of the Laborers Local 5 in Chicago
and vice-president of the Chicago Laborers District Council. Angelo
Fosco was vice-president of the Laborers International Union of North
America.
/3/ Until June 1976, petitioner Pinckard operated Pinckard and
Associates out of C&A's offices. Pinckard and Associates later moved
to separate offices in the same building that housed C&A. Afft. para.
1i.
/4/ The warrant for the search of C&A authorized the agents to
seize "all corporate records of Consultants and Administrators, Inc.;
a black vinyl book * * * containing copies of contracts,
correspondence, bank statements and receipts; (and) envelopes and
United States currency which are evidence and instrumentalities of the
offense set forth in (18 U.S.C.) 1954." Pet. App. 53-54. The warrant
for the search of Pinckard and Associates authorized the agents to
seize "all corporate records" of that corporation "which are evidence
and instrumentalities of the offense set forth in (18 U.S.C.) 1954."
Pet. App. 55.
/5/ Two file cabinets in the C&A file room contained records of
other corporate entities. 2/26/82 Tr. 199-200. After a cursory
inspection of the file cabinets to ensure that they contained no C&A
records, the agents said that they were not interested in the files
and did not seize them. Id. at 200-210.
/6/ The court of appeals explained that the agents "'took every
step that could reasonably be expected of them.' As in Sheppard, the
agents submitted a detailed affidavit to a magistrate in order to
secure the search warrants. The affidavit alleged a pervasive fraud
that had resulted in the incorporation of a sham business to channel
kickback monies to labor officials. In addition, the affidavit was
reviewed by several attorneys in the U.S. Attorney's office before it
was presented to a magistrate, who found probable cause and issued the
warrants. * * * Moreover, the warrants' authorization to seize 'all
corporate records' does not transgress the limitation on the good
faith exception described by the Supreme Court as cases involving
warrants 'so facially deficient -- i.e., failing to particularize the
place to be searched or the things to be seized -- that the executing
officers cannot reasonably presume it to be valid.' Arguably, 'all
corporate records' is significantly more general than the 'any
controlled substance' language contained in the Sheppard warrant.
Even so, this is not dispositive. The question here is not the legal
validity of the warrant but the reasonableness of the officers'
reliance on it." Pet. App. 42 (citations omitted).
/7/ The government also argued that the documents seized during the
search were admissible because subpoenas that had been separately
issued for the documents provided an "independent source" for their
acquisition and showed that the documents would inevitably have been
discovered regardless of whether the searches had been conducted.
Gov't C.A. Br. 27-28, United States v. Accardo, 749 F.2d 1477 (11th
Cir.), cert. denied, 474 U.S. 949 (1985). The court of appeals did
not find it necessary to address that argument. Pet. App. 38 n.1.
/8/ See, e.g., In re Search of 4801 Fyler Ave., No. 88-1573 (8th
Cir. July 13, 1989), slip op. 9 (any "correspondence, records, files,
work orders, logs, or other documents" relating to hazardous wastes);
United States v. Brown, 832 F.2d 991 (7th Cir. 1987) (seizure of
generically described business records relating to the submission of
fraudulent insurance claims), cert. denied, 108 S. Ct. 1084 (1988);
United States v. Kail, 804 F.2d 441 (8th Cir. 1986) (upholding a
warrant for almost all of the defendant's business records); United
States v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986); United States
v. Sovereign News Co., 690 F.2d 569, 574, 576-577 (6th Cir. 1982)
(seizure of generic business records "'reflecting the importation,
receipt, and shipment' of seizable (i.e., obscene) publications as
well as 'documents reflecting the corporate structure of Sovereign
News Company and any of its affiliate companies'"); United States v.
Hershenow, 680 F.2d 847, 852-853 (1st Cir. 1982) (seizure of "all
accident patient files"); United States v. Brien, 617 F.2d 299, 306
(1st Cir.) (approving a warrant for most of the defendant's business
records), cert. denied, 446 U.S. 919 (1980).
/9/ See United States v. Sawyer, 799 F.2d at 1508 (evidence of
pervasive fraud justifies a broad warrant); United States v.
McClintock, 748 F.2d 1278, 1283 (9th Cir. 1984) (same), cert. denied,
474 U.S. 822 (1985); United States v. Offices Known as 50 State
Distributing Co., 708 F.2d 1371, 1374-1376 (9th Cir. 1983) (same),
cert. denied, 465 U.S. 1021 (1984); United States v. Hillyard, 677
F.2d 1336, 1339-1340 (9th Cir. 1982) (same); National City Trading
Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir. 1980).
/10/ As petitioners note (Pet. 10-11 n.7), several Ninth Circuit
cases refused to apply the good faith exception when officers relied
on search warrants later found to be impermissibly general. See
United States v. Dozier, 844 F.2d 701, 708 (1988), cert. denied, 109
S. Ct. 312 (1989); United States v. Spilotro, 800 F.2d 959, 968
(1986); United States v. Washington, 797 F.2d 1461, 1472-1474 (1986);
United States v. Crozier, 777 F.2d 1376, 1381 (1985).
/11/ Indeed, petitioners acknowledge that "there is now an internal
conflict between the First Circuit's decisions in Diaz and Fuccillo."
Pet. 12.
/12/ Petitioners rely on Buck, along with the decision in this
case, as being in conflict with decisions in the First, Ninth, and
Tenth Circuits. Pet. 11.
/13/ In our certiorari petition in Fuccillo, we pointed out that
the prior decision in this case and Buck were in conflict with the
First Circuit's decision in Fuccillo and with several Ninth Circuit
decisions that pre-dated Michaelian. 86-1622 Pet. 14-17. We noted
that the decision in Michaelian appeared to be consistent with the
majority position that the good faith exception can be applied to
warrants found to be overbroad. 86-1622 Pet. 16-17.
/14/ See Allen v. United States, 164 U.S. 492 (1896).
/15/ This Court has upheld the use of such supplemental
instructions on four occasions. Lowenfield v. Phelps, 108 S. Ct. 546,
550-551 (1988); Kawakita v. United States, 343 U.S. 717, 744 (1952),
aff'g 190 F.2d 506, 521-528 (9th Cir. 1951); Lias v. United States,
284 U.S. 584, aff'g 51 F.2d 215, 218 (4th Cir. 1931); Allen v. United
States, supra. Every circuit has upheld the use of some form of a
supplemental jury instruction. Lowenfield v. Phelps, 108 S. Ct. at
551 n.1 (collecting cases). Moreover, the supplemental instruction
given in this case was mild and balanced. It directed the jurors to
make an individual judgment on the guilt or innocence of each
defendant. It was addressed to all of the jurors, not simply to juror
Larson. It therefore did not run afoul of the primary criticism of
the Allen charge -- that it is directed to jurors in the minority.
See, e.g., United States v. Flannery, 451 F.2d 880, 883 (1st Cir.
1971). Moreover, the charge reminded the jurors of their
responsibility to listen to one another, to be open-minded and
impartial, and to reach a verdict if possible. And it directed the
jurors not to abandon their individual judgment in so doing. That
instruction was not coercive. See Lowenfield, 108 S. Ct. at 551.
That is particularly true since the court had previously told juror
Larson in no uncertain terms that he "absolutely" and
"unequivoca(lly)" was not required to vote with the majority.
/16/ See, e.g., United States v. Nichols, 820 F.2d 508, 512 (1st
Cir. 1987) (one-hour gap not coercive); United States v. Bailey, 468
F.2d 652, 664 (1972), aff'd, 480 F.2d 518 (5th Cir. 1973) (en banc)
(90-minute gap not coercive). Compare Lowenfield v. Phelps, 108 S.
Ct. at 552 (30-minute gap raised "possibility of coercion").
/17/ E.g., United States v. Rengifo, 789 F.2d 975, 985 (1st Cir.
1986); United States v. Akbar, 698 F.2d 378, 380 (9th Cir.), cert.
denied, 461 U.S. 959 (1983); United States v. Cook, 663 F.2d 808, 809
n.3 (8th Cir. 1981); United States v. Warren, 594 F.2d 1046, 1049 n.3
(5th Cir. 1979); United States v. Diggs, 522 F.2d 1310, 1322 (D.C.
Cir. 1975), cert. denied, 429 U.S. 852 (1976); United States v.
Jennings, 471 F.2d 1310, 1314 (2d Cir.), cert. denied, 411 U.S. 935
(1973); Gafford v. Warden, 434 F.2d 318, 319 (10th Cir. 1970);
United States v. Sawyers, 423 F.2d 1335, 1340-1341 (4th Cir. 1970);
Sanders v. United States, 415 F.2d 621, 629, 631-632 (5th Cir. 1969),
cert. denied, 397 U.S. 976 (1970); United States v. Rao, 394 F.2d
354, 356 (2d Cir.), cert. denied, 393 U.S. 845 (1968); Bowen v.
United States, 153 F.2d 747, 752 (8th Cir.), cert. denied, 328 U.S.
835 (1946).
/18/ To the extent that Sae-Chua can be read to have criticized the
district court's inquiry into the usefulness of further deliberations
by the jury, rather than into its numerical division, that criticism
is no longer valid after Lowenfield, which distinguished such an
inquiry from the one prohibited by Brasfield. 108 S. Ct. at 552.
/19/ The remaining cases cited by petitioner or the court below are
inapposite. Cornell v. Iowa, 628 F.2d 1044 (8th Cir. 1980), cert.
denied, 449 U.S. 1126 (1981), was a federal habeas corpus proceeding.
The court held that the state trial court's inquiry into the jury's
division followed by the use of an Allen charge was not
unconstitutionally coercive on the facts of that case. 628 F.2d at
1047-1048. In Holt v. Wyrick, 649 F.2d 543 (8th Cir. 1981), another
federal habeas corpus proceeding, the state trial court declared a
mistrial after the foreman, in response to an ambiguous inquiry from
the trial judge, disclosed the jury's numerical division. 649 F.2d at
550-551 & n.9. The court held that the retrial did not violate the
Double Jeopardy Clause. Id. at 551-552. The court did not decide
whether the state trial court's actions were coercive. In United
States v. Webb, 816 F.2d 1263 (8th Cir. 1987), the district court
asked the foreman for the jury's division and then gave a modified
Allen charge, and the jury returned a verdict of guilty 15 minutes
later. The court held that the totality of the circumstances required
reversal. 816 F.2d at 1267. Finally, in Williams v. United States,
338 F.2d 530, 531 (D.C. Cir. 1964), the district court asked the
foreman whether there was "'a clear minority'" after the foreman asked
the court, "'Can the (two) alternate jurors replace the minority
voters?'" The court of appeals found that, under the circumstances,
the trial court's inquiry was similar to the type of inquiry
prohibited by Brasfield. That case is distinguishable for the reasons
given in the text.
/20/ Petitioners also contend (Pet. 23-24) that the trial judge
should have questioned juror Larson regarding the source of the
"duress," but as the court of appeals noted, Pet. App. 22, the trial
judge correctly decided not to intrude into the jurors' thought
processes. See Tanner v. United States, 483 U.S. 107, 116-127 (1987);
Fed. R. Evid. 606(b).