U.S. v. Atkin

• Decision Date: 04 March 1997
• Docket Number: No. 95-4040,95-4040
• Citation: 107 F.3d 1213
• Parties: -1301 UNITED STATES of America, Plaintiff-Appellee, v. Sanford I. ATKIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1213

107 F.3d 1213

79 A.F.T.R.2d 97-1301

UNITED STATES of America, Plaintiff-Appellee, v. Sanford I. ATKIN, Defendant-Appellant.

No. 95-4040.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 17, 1996.

Decided March 4, 1997.

Craig S. Morford (briefed), Cleveland, OH, Michael A. Attanasio (argued and briefed), U.S. Dept. of Justice, Criminal Div., Public Integrity Section, Washington, DC, for plaintiff-appellee.

Gordon S. Friedman (argued and briefed), Friedman & Gilbert, Cleveland, OH, for defendant-appellant.

Before: RYAN and BATCHELDER, Circuit Judges; MILES, District Judge ^*

MILES, District Judge.

Defendant Sanford I. Atkin, an attorney, appeals his conviction and sentence on multiple charges arising out of his acceptance of $550,000 from Reuben Sturman, a defendant in a federal tax prosecution. In the indictment, the government alleged, among other things, that Atkin had obtained the money from Sturman by falsely representing that he, Atkin, would bribe the United States District Judge presiding over Sturman's criminal case. Atkin never did bribe the judge, and he now challenges the sufficiency of the evidence to support his convictions on two counts of obstruction of justice. Atkin also challenges the district court's denial, without an evidentiary hearing, of his motion to suppress, as well as the district court's decision to enhance his sentence for obstruction of justice and money laundering under U.S.S.G. § 3B1.3 on the basis that Atkin used his skills as an attorney to significantly further or conceal those offenses. For the reasons to follow, we AFFIRM.

I

On November 4, 1994, a federal grand jury sitting in the Northern District of Ohio returned a 30-count indictment charging Sanford Atkin, a Cleveland attorney, with various offenses including two counts of obstruction of justice, in violation of 18 U.S.C. § 1503; seven counts of interstate transportation of property obtained by fraud, in violation of 18 U.S.C. § 2314; 11 counts of engaging in a monetary transaction in criminally derived property, in violation of 18 U.S.C. § 1957; one count of witness tampering, in violation of 18 U.S.C. § 1512; four counts of income tax evasion, in violation of 26 U.S.C. § 7201; four counts of filing false tax returns, in violation of 26 U.S.C. § 7206; and a final count which sought criminal forfeiture of $230,202, pursuant to 18 U.S.C. § 982, based on the involvement of the funds in Atkin's violation of 18 U.S.C. § 1957. The charges arose out of Atkin's acceptance of large sums of money from Reuben Sturman, a world-wide distributor of "adult" materials who was a defendant in a federal tax evasion case in Cleveland, Ohio. Atkin ultimately accepted a total of $550,000 from Sturman under the pretense that Atkin would give the money to the United States District Judge to whom the tax evasion case was assigned.

Atkin did not represent Reuben Sturman in the tax evasion case; Sturman had retained other counsel who had successfully represented him in a number of obscenity prosecutions. Instead, Atkin's only official role in the tax evasion case consisted of serving as local counsel for Sturman's son David, who was also a defendant in the case. ¹ However, Atkin performed little work on behalf of David Sturman who, like his father, had other counsel. When the case went to trial in September, 1989, Atkin did not participate.

At the conclusion of a two-month trial on November 17, 1989, the jury in the tax evasion case reached a verdict finding both Reuben and David Sturman guilty on all charges. Reuben Sturman, who had apparently predicted such an outcome, attempted to ensure that he would remain free on bond pending sentencing and an appeal. Believing that Atkin was a close friend of the district judge presiding over the case, Sturman sought Atkin's assistance in bribing the judge to rule in Sturman's favor on the bond issue. Atkin agreed to help, and between November 6, 1989 and January 11, 1990, he accepted a total of $300,000 from Sturman for the purpose of bribing the district judge. Unbeknownst to Sturman, Atkin did not in fact use Sturman's money to bribe the district judge, although the judge did, coincidentally, allow Sturman to remain free on bond pending sentencing and appeal. The district judge sentenced Sturman to 10 years imprisonment. Sturman's appeals did not succeed, and he ultimately began serving his sentence, which was to run concurrent with a second four-year sentence imposed after Sturman entered a guilty plea on separate obscenity charges brought in federal court in Las Vegas, Nevada.

Subsequently, Sturman again sought Atkin's assistance in bribing the district judge to secure a ruling in Sturman's favor in the tax evasion case, this time on a motion under Fed.R.Civ.P. 35 seeking a reduction of his 10-year sentence to three years. Atkin again agreed to help, and during May, 1992, Sturman made additional payments to Atkin totalling $250,000 for the purpose of bribing the judge to grant Sturman's Rule 35 motion. However, although Atkin did at one point approach the district judge in chambers and attempt to engage him in a discussion of Sturman's situation, the district judge refused to discuss the case. ² Once again, Atkin kept all of Sturman's money for himself. Sturman, through his trial counsel, subsequently filed three separate Rule 35 motions; not surprisingly, all three were denied. In December, 1992, only days after his third motion was denied, Sturman escaped from a federal prison. He was subsequently recaptured, and he and others associated with him ultimately cooperated in the government's investigation of Atkin.

On June 21, 1995, the jury found Atkin guilty on 28 of the 29 counts in the indictment, acquitting him only of witness tampering. In a bifurcated proceeding, Atkin was also required to forfeit $230,202 worth of property, pursuant to Count 30 of the indictment. On September 14, 1995, the district court sentenced Atkin to 63 months imprisonment, three years of supervised release, and a fine of $12,500. Atkin filed this timely appeal.

II

A.

After his indictment, Atkin filed a motion to suppress evidence seized during searches of his office and residence, arguing that the affidavits relied upon in obtaining the search warrants contained material misstatements and omissions essential to a finding of probable cause. The district court denied the motion without conducting an evidentiary hearing, concluding that application of the totality of the circumstances test, as required by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), more than justified the issuance of the search warrants. Atkin now argues that the district court erred in denying his motion to suppress without first conducting a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). More specifically, Atkin argues that the affidavits submitted in support of the warrants omitted material information and thereby misrepresented the reliability of Reuben Sturman, Sturman's ex-wife Naomi Delgado, and other Sturman associates who had provided information to the government. We review a district court's decision on a motion to suppress under two complementary standards: first, we uphold the district court's findings of fact unless they are clearly erroneous; and second, we review the district court's legal conclusions de novo. United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993).

Franks recognized a defendant's right to challenge the sufficiency of an executed search warrant on the basis that "a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... the allegedly false statement is necessary to the finding of probable cause[.]" 438 U.S. at 155-56, 98 S.Ct. at 2676. However, under Franks the defendant is entitled to an evidentiary hearing on the veracity of the statements in the affidavit

if and only if (1) there is a substantial preliminary showing that specified portions of the affiant's averments are deliberately or recklessly false and (2) a finding of probable cause would not be supported by the remaining content of the affidavit when the allegedly false material is set to one side.

United States v. Campbell, 878 F.2d 170, 171 (6th Cir.) (emphasis in original), cert. denied, 493 U.S. 894, 110 S.Ct. 243, 107 L.Ed.2d 194 (1989).

Atkin does not contend that the affidavits contained materially false affirmative statements, but rather that they omitted information crucial to evaluating the credibility of Sturman, Delgado, and others who provided information to the government. ³ Although material omissions are not immune from inquiry under Franks, we have recognized that an affidavit which omits potentially exculpatory information is less likely to present a question of impermissible official conduct than one which affirmatively includes false information. United States v. Martin, 920 F.2d 393, 398 (6th Cir.1990). This is so because an allegation of omission " 'potentially opens officers to endless conjecture about investigative leads, fragments of information, or other matter that might, if included, have redounded to defendant's benefit.' " Id. (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990)). If the defendant does succeed in making a preliminary showing that the government affiant engaged in "deliberate falsehood" or "reckless disregard for the truth" in omitting information from the affidavit, the court must then consider the affidavit including the omitted portions and determine whether probable cause still exists. United States v. Bonds, 12 F.3d 540, 568 n. 26 (6th Cir.1993).

Here, we have little difficulty concluding that the district court was not required to conduct a Franks hearing. As in Martin, the defendant's contention is basically that the affidavit failed to provide information which showed that the informants'...