U.S. v. Plavcak

• Decision Date: 06 June 2005
• Docket Number: No. 03-6256.,03-6256.
• Citation: 411 F.3d 655
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Norbert PLAVCAK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

411 F.3d 655

UNITED STATES of America, Plaintiff-Appellant, v. Norbert PLAVCAK, Defendant-Appellee.

No. 03-6256.

United States Court of Appeals, Sixth Circuit.

Argued: August 4, 2004.

Decided and Filed: June 6, 2005.

ARGUED: David A. Marye, Assistant United States Attorney, Lexington, Kentucky, for Appellant. Robert L. Abell, Lexington, Kentucky, for Appellee. ON BRIEF: David A. Marye, Charles P. Wisdom Jr., Assistant United States Attorneys, Lexington, Kentucky, for Appellant.

Before: SUTTON and COOK, Circuit Judges; ROSEN, District Judge.^*

ROSEN, District Judge.

I. INTRODUCTION

This case arises out of the Government's investigation of allegations of immigration fraud by International Labor Resources, Inc. ("ILR"), a company that allegedly recruited illegal aliens to work in the United States and assisted them in obtaining false work documentation. Defendant-Appellee Norbert Plavcak, an employee of ILR, was indicted for interfering with the Government's investigation. Specifically, Plavcak was charged with one count of conspiracy to obstruct justice and to destroy or remove property to prevent seizure, one count of obstruction of justice, and one count of destruction or removal of property to prevent seizure in violation of 18 U.S.C. § 2232(a). Prior to trial, the Government voluntarily dismissed the obstruction of justice count and redacted the conspiracy count to remove references to obstruction of justice. Then, on the eve of trial, Plavcak submitted a trial memorandum in which he argued that he could not have violated 18 U.S.C. § 2232(a) because the INS agents did not have a warrant authorizing seizure of the items that he was alleged to have been destroying.

The district court treated Plavcak's memorandum as a motion to dismiss the indictment. After considering the Government's opposing arguments, the court determined that § 2232(a) requires a warrant or a warrant exception, both of which the district judge found to be lacking in this case. Accordingly, the court dismissed the indictment. The Government now appeals the district court's decision.

Although we agree with the district court that a warrant or a valid warrant exception is needed under § 2232(a), we find that, under the particular facts of this case, sufficient exigent circumstances existed to justify seizure of the evidence at issue. Accordingly, for the reasons more fully developed below, the district court's decision is AFFIRMED, in part, and REVERSED, in part.

II. FACTUAL BACKGROUND

In November 1999, the Immigration and Naturalization Service (the "INS") was engaged in an ongoing investigation of alien smuggling, visa fraud, counterfeit document vending and the employment of undocumented aliens by janitorial/cleaning companies in Florida, Virginia and Kentucky. International Labor Resources, Inc. ("ILR"), a company that allegedly recruited illegal aliens to work in the United States and assist them in obtaining false work documentation, was one of the targets of the investigation. Pursuant to its investigation into ILR's business practices, on November 16, 1999, the INS obtained two search warrants for specific locations in Lexington, Kentucky — one to search ILR's business premises and one to search the residence of Charles and Penelope Martin, the owners of ILR. The warrants authorized the seizure of records, documents, computer hardware and software, and any other media used in documenting ILR's employment practices vis-a-vis illegal aliens.

After obtaining the warrants, in the early morning of November 17, 1999, INS agents visited the apartment of Petr Gloncak and his wife, Jana Gloncakova (collectively, the "Gloncaks"). Their residence was not specified in either of the search warrants. Gloncak is a citizen of the Czech Republic and was in the United States at the time as a visitor on a visitor's visa. He was illegally employed and was working for Charles Martin at ILR.

Upon encountering Gloncak at his apartment, INS agents immediately placed him under arrest and took him into custody for overstaying his visa. Jana Gloncakova was also at the apartment at the time. Although Gloncakova had also overstayed her visa, she was not taken into custody. Rather, she was told to report to the INS office in Louisville the next day.

While at the Gloncaks' apartment, INS Special Agent Ronald Johnson observed a computer as well as some documents that he could tell were related to ILR and fit the description of those identified in the search warrants. However, Johnson did not examine or seize the documents or attempt to obtain a search warrant for the Gloncak residence to authorize their seizure.

Agent Johnson left the apartment with Gloncak, and went to help with the execution of the search warrants.

After the INS agents left the apartment, Jana Gloncakova contacted Defendant Norbert Plavcak, a legal permanent resident who worked with her husband at ILR. Plavcak joined Gloncakova at her apartment and then called the person who originally hired him, Tomasz Rokosz. Unbeknownst to Gloncakova and Plavcak, Rokosz was acting as a confidential informant ("CI") for the INS. The CI then observed Plavcak telephone Charles Martin, the owner of ILR, and heard him tell Martin about Gloncak's arrest earlier that morning. Plavcak then hung up the telephone and told the CI and Gloncakova that Martin had said that the INS was at his house and business at that moment executing search warrants. Plavcak told the CI that they needed to get rid of some documents before the INS could find them.

The CI attempted to persuade Plavcak and Gloncakova not to destroy the documents, but they were not dissuaded. Plavcak and Gloncakova took the documents and computer to the apartment of two other ILR alien employees who were Russian. The CI called INS officials and informed them of Gloncakova's and Plavcak's activities. Agent Johnson then contacted the Lexington police, who were dispatched to the Russians' apartment. Meanwhile, Plavcak and Gloncakova began to burn the documents in the fireplace of the Russians' apartment. Once the police arrived at the Russians' apartment, Gloncakova grabbed the computer, and fled the apartment with Plavcak and the CI down the back stairs while officers were coming up the front stairs. Plavcak and Gloncakova were subsequently apprehended, with the computer, at a local area Wal-Mart store and brought back to the Russians' apartment. Agent Johnson then seized the computer and the other remaining documents and charred remains.

On February 3, 2000, Plavcak was indicted by the Grand Jury in the Eastern District of Kentucky and charged with conspiracy to obstruct justice and to destroy or remove property to prevent seizure, obstruction of justice in violation of 18 U.S.C. § 1503, and destruction and removal of property to prevent seizure in violation of 18 U.S.C. § 2232(a). Jana Gloncakova was named in the indictment as an unindicted co-conspirator.

On August 21, 2003, the Government dismissed the obstruction of justice charges in count 2 and redacted the obstruction of justice charges from the conspiracy count (count 1), leaving only the charges relating to destruction and removal of property in counts 1 and 3 for trial. Then, on August 25, 2003, i.e., the day before trial was scheduled to commence, Plavcak filed a trial memorandum which the district court treated as a motion to dismiss the indictment.

In his motion, Plavcak argued that he did not violate 18 U.S.C. § 2232(a) since no warrant ever authorized seizure of the property he was alleged to have destroyed or removed. The Government opposed the motion, arguing that a search warrant was not required to authorize seizure of the items because exigent circumstances existed, i.e., the items were in the process of being destroyed when the Government agents arrived on the scene.¹ After considering the parties' arguments, the court ordered that the indictment be dismissed.

III. THE DISTRICT COURT'S RULING

In granting Defendant's motion to dismiss the indictment, the district court read into the provision in 18 U.S.C. § 2232(a) that the seizure be made by any "person authorized to make searches and seizures" a requirement of "proof that the search warrant existed, ... or that there were grounds to seize them immediately." See 8/26/03 Transcript, p. 13 (quoting Thomas v. United States, 124 F.3d 200, 1997 WL 525408 (6th Cir.1997)). Finding neither in this case, the district court ordered the indictment dismissed. The court reasoned:

The situation we have here is that there were two search warrants issued neither for the property — neither pertained to the property where this material was supposedly located. The evidence that was destroyed was not the subject of any warrant at the time it was destroyed.

The evidence may have led the agent to believe that it might have been evidence of a crime, but it was not per se incriminating. It was not something like an obviously sawed-off shotgun or something that was per se incriminating, or — or a weapon in the hand of a known criminal — known felon.

The question then becomes: "What could the officer have done?" Well, the officer could have seized it, and then we'd be having an exigent circumstances type of circumstances, but he didn't do that. So that there — in his mind, he didn't have any authority to seize it. Then it was destroyed if we assume everything that was said to be the case. It would seem to me that Title 18, United States Code, Section 2232(a) does not cover this situation where it was not immediately seizable evidence. It was not per se incriminating. It might have been later subject to a probable cause determination, but in this case it was not evidence of a crime per se.

* * * * * *

As the Court recognized in Thomas, ... the statute requires proof that the search warrant existed, or that there was — and I read that "or that there was grounds to seize them immediately," and [that] did not occur here.

Id. at pp. 10-13.

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