U.S. v. Knoll

• Citation: 116 F.3d 994
• Decision Date: 07 July 1997
• Docket Number: No. 843,D,843
• Parties: UNITED STATES of America, Appellee, v. David R. KNOLL, Defendant-Appellant. ocket 95-1267.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 994

116 F.3d 994

UNITED STATES of America, Appellee, v. David R. KNOLL, Defendant-Appellant.

No. 843, Docket 95-1267.

United States Court of Appeals,

Second Circuit.

Argued Feb. 15, 1996.

Decided July 7, 1997.

Stephen L. Braga, Washington, DC (Robert J. McGahan, Miller, Cassidy, Larroca & Lewin, Washington, DC, on the brief), for Defendant-Appellant.

Denise E. O'Donnell, First Assistant United States Attorney, Buffalo, NY (Patrick H. NeMoyer, United States Attorney for the Western District of New York, Buffalo, NY), for Appellee.

Before: WALKER and CALABRESI, Circuit Judges. ^*

WALKER, Circuit Judge.

Defendant-appellant David R. Knoll appeals from a decision and order entered April 28, 1995, in the United States District Court for the Western District of New York (William M. Skretny, Judge ), denying Knoll's motion to suppress evidence introduced against him at trial. The district court issued its decision and order on remand from this court following Knoll's appeal from a judgment entered September 28, 1992, convicting him of one count of aiding and abetting the making of a material false statement to a department of the United States in violation of 18 U.S.C. §§ 1001 and 2. We affirm the district court's evidentiary ruling.

Knoll also challenges the validity of his conviction under United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), decided while this appeal was pending, because the jury did not decide the question of materiality in convicting him as Gaudin requires. We affirm Knoll's conviction because the failure to submit materiality to the jury did not "seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993).

I

The facts pertaining to this appeal are described in the district court's opinion denying Knoll's pre-trial motion to suppress, United States v. Gleave, 786 F.Supp. 258 (W.D.N.Y.1992), and in our prior opinion remanding to the district court for further consideration of Knoll's suppression motion, United States v. Knoll, 16 F.3d 1313 (2d Cir.) ("Knoll I "), cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994), familiarity with which is assumed.

On February 22, 1990, Knoll was indicted on, among other things, one count of aiding and abetting his co-defendant Ted W. Gleave in making a material false statement to a department of the United States in violation of 18 U.S.C. §§ 1001 and 2 ("Count Eight"). ¹ Count Eight charged that, in June 1987, Knoll assisted Gleave in the preparation of a financial statement for the United States Department of Justice ("DOJ"), in which Gleave falsely stated that he did not have a savings account. Knoll I, 16 F.3d at 1317. In fact, "Gleave and Knoll went together to the Cayman Islands [in 1982] and there opened two bank accounts: a personal account in Gleave's name ... and a corporate account in the name of soon-to-be-formed [company] Atlantis International, [Ltd.]." Id. at 1316.

The government's case against Knoll was based in part on information obtained from files stolen from Knoll's law office. The files were purloined during a burglary orchestrated in June 1986 by Timothy Ernle, a then-incarcerated felon. Id. at 1317. Following the burglary, Ernle contacted Assistant United States Attorney ("AUSA") Anthony Bruce and informed AUSA Bruce that Ernle could provide evidence of illegal activity by Knoll. Id. Ernle's girlfriend, Patricia Devany, then delivered to AUSA Bruce various documents and tapes that she and Ernle's associate, Diane Brown, had removed from the stolen files. Id.; United States v. Knoll, No. 90-CR-33S-01, slip op. at 6 (W.D.N.Y. Apr. 28, 1995) ("Knoll II "). After receiving the delivery, AUSA Bruce informed Ernle that he was disappointed with the materials and told Ernle he would have to "get [him] more information." Knoll I, 16 F.3d at 1320; Knoll II, slip op. at 12. Devany then turned over additional documents recovered from the original burglary, including two letters addressed to Barclays Bank International Limited regarding the accounts in the Cayman Islands. These letters ultimately led to the indictments of Knoll and Gleave.

Knoll filed a pre-trial motion to suppress the evidence recovered from his stolen files, arguing that its use violated his Fourth Amendment right to be free from unreasonable searches and seizures. Gleave, 786 F.Supp. at 282. The district court held that Knoll suffered no Fourth Amendment violation because the government did not participate in the burglary. See id. at 286-89. The district court also rejected Knoll's argument that the government was required to obtain a search warrant in order to read the documents after they were turned over to the government by Ernle and Devany. See id. at 289-91.

The case proceeded to trial. In charging the jury on Count Eight, the district court, in accordance with settled Second Circuit law, see United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.1984), overruled by United States v. Ali, 68 F.3d 1468, 1475 (2d Cir.1996), did not submit to the jury the question of the materiality of the false statement and instructed the jury that the court determined that "the facts charged in the indictment are material facts." Knoll did not object to this instruction. The jury convicted Knoll on Count Eight.

Knoll appealed, reasserting the Fourth Amendment claim that he raised in his pre-trial motion to suppress. We agreed with the district court that the burglary of Knoll's office occurred without the involvement of the government, and thus did not implicate the Fourth Amendment. However, we concluded that the search of the stolen files following the burglary was an event separate from the burglary. See Knoll I, 16 F.3d at 1319 (noting that the "search" at issue involved "specific rummaging through boxes of files that had earlier been stolen from Knoll's law office"). Because the record left open the possibility that AUSA Bruce requested that Ernle produce additional documents, we On remand, the district court held a hearing and concluded that the search of Knoll's files was completed before AUSA Bruce asked Ernle for more information. Specifically, the district court found that Devany and Brown had searched through each of the stolen files immediately after the burglary, removing documents from envelopes and files, looking at letters, listening to tape recordings, and separating and segregating documents, prior to Ernle's initial contact with AUSA Bruce. Knoll II, slip op. at 10-11. The district court therefore concluded that the object of the search had been completed, and Knoll's reasonable expectation of privacy breached, before any governmental involvement in the case, thereby placing the search beyond the purview of the Fourth Amendment. Id. at 11-12. Knoll once again appealed.

were concerned that Ernle and Devany might have been acting as agents for the government when they searched Knoll's files. Id. at 1319-20 ("While it appears all the files had already been taken from Knoll's office [when Ernle and AUSA Bruce spoke], it is not clear from the record that they had necessarily been opened."). Accordingly, we remanded, instructing the district court to conduct a hearing to determine whether the object of the search had been completed, and Knoll's reasonable expectation of privacy in the files breached, before AUSA Bruce's request for additional documents. Id. at 1320-21.

On June 19, 1995, two months after the district court's decision on the remanded suppression issue and one month after Knoll filed his notice of appeal, the Supreme Court decided Gaudin. ² The Court held in Gaudin that the failure to submit the question of materiality to the jury in a § 1001 prosecution violates a defendant's "right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged." Gaudin, 515 U.S. at ----, 115 S.Ct. at 2320. ³ Knoll raised the Gaudin issue in a 28 U.S.C. § 2255 motion filed with the district court on September 11, 1995, United States v. Knoll, No. 90-CR-335-01, slip op. at 1 (W.D.N.Y. Jan. 17, 1996) ("Knoll III "), and informed this court of his pending § 2255 motion in the brief he filed with this court on September 13, 1995. Br. for Def.-Appellant at 50 n.22. After the district court denied Knoll's § 2255 motion on the ground that a resolution of this appeal with respect to the suppression issue in Knoll's favor would render his motion moot, see Knoll III, slip op. at 3, Knoll moved this court for leave to file a supplemental brief raising the Gaudin issue. We granted the motion, consolidating Knoll's Gaudin claim with his Fourth Amendment claim on appeal.

II

A. Knoll's Fourth Amendment Claim

The district court held an evidentiary hearing and concluded that the search of Knoll's files was completed prior to the government's involvement in the case. This is precisely the inquiry that we requested in Knoll I. Accordingly, we will not disturb the district court's conclusion unless it rests upon clearly erroneous factual findings. See United States v. Brown, 52 F.3d 415, 420 (2d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 754, 133 L.Ed.2d 701 (1996).

The district court's findings were based largely on its assessment of the credibility of the conflicting testimony of the witnesses. We find no error in the court's decision to discount portions of Ernle's testimony and credit instead the testimony of Devany and Brown. See United States v. Davis, 967 F.2d 84, 86 (2d Cir.1992) ("[T]he trial court is in a unique position to evaluate witnesses' credibility...."). We therefore We also reject Knoll's contention that the government's continued possession of the files after they were turned over to AUSA Bruce constituted an illegal seizure. This argument was not raised in the district court, see Br. of Def.-Appellant at 42 n.20, and thus we review this...