U.S. v. Belculfine, 75--1213

• Decision Date: 30 December 1975
• Docket Number: No. 75--1213,75--1213
• Parties: UNITED STATES of America, Appellee, v. Joseph L. BELCULFINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 941

527 F.2d 941

UNITED STATES of America, Appellee, v. Joseph L. BELCULFINE, Defendant-Appellant.

No. 75--1213.

United States Court of Appeals, First Circuit.

Submitted Sept. 12, 1975.

Decided Dec. 30, 1975.

Robert Snider, Boston, Mass., and Snider, Crowe & Sbrogna, Boston, Mass., on brief for appellant.

James N. Gabriel, U.S. Atty., and Alan R. Hoffman, Sp. Asst. U.S. Atty., Boston, Mass., on brief for appellee.

Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This is the second time that we have considered issues arising from this case. Appellant was originally convicted for the possession and mailing of a pipe bomb, which exploded in the South Boston Postal Annex. An important piece of evidence in that prosecution was a piece of wire which had been seized by Postal Inspectors, acting pursuant to a warrant, from a workbench that was located in a workshop in the rear of the offices of the Bell Music and Amusement Company. The affidavit that the postal inspectors submitted in support of their application for the search warrant stated:

'On several occasions, between July 26 and August 8, 1973, we went to the premises of Bell Music and Amusement Company, Inc., at 1 Pineland Avenue, Shrewsbury, Massachusetts, (and) looked through the glass window. The premises consisted of a front office with one desk and file cabinets. To the rear of this office through a door partially open, we observed a wooden bench and table.'

Subsequent to the search it became apparent that the postal inspectors could not have seen the workbench from which the wire was seized by looking through the glass window at the front of the premises. The appellant thereupon moved to suppress the wire evidence, contending that there had been no probable cause to issue the warrant. A federal magistrate held a hearing, and the district court denied the motion, stating that so long as the affidavits were facially sufficient, the motion to suppress must be denied. An appeal was taken to this court, and we vacated the judgment of the district court, holding that the wire evidence must be suppressed if the affidavit contained an intentional, relevant, and non-trivial misstatement. United States v. Belculfine, 508 F.2d 58 (1974). Since the district court had made no findings with respect to whether the postal inspectors had knowingly misrepresented the facts, we remanded the case to the district court for a hearing on that issue. In the course of our opinion, this court made the statement that '(the) evidence adduced at the suppression hearing (established) conclusively that the statement in the affidavit that '(t)o the rear of this office through a door partially open, we observed a wooden bench and table' was incorrect.' 508 F.2d at 62.

On remand the district court conducted an evidentiary hearing to resolve the factual question of the inspector's intent. In the course of the hearing, the district court took a view of the Bell Music and Amusement Company premises. On the basis of the evidence adduced the district court found that, although the postal inspectors could not have seen the workbench from which the wire was seized by looking through the glass window, the postal inspectors had not been referring to that workbench in their affidavit. Rather, the district court found, they were referring to certain objects in a middle room which looked like a wooden bench and table and, therefore, that the postal inspectors had not committed a misstatement. Because the district court was concerned that this court's prior statement regarding the accuracy of the representation in the affidavit may have been binding on it, the district court found, in the alternative, that any misrepresentation that was made was unintentional. Since we affirm on the basis of the district court's primary finding, we need not consider the propriety of its alternative finding.

Appellant attacks these findings on three grounds. First, he contends that our statement concerning the truth of the representation in the affidavit constituted the 'law of the case' and therefore precluded the district court from finding that the postal inspectors actually observed objects that looked like a wooden bench and table. We disagree that our statement regarding the accuracy of the statement contained in the inspector's affidavit foreclosed the district court from finding that the inspectors had not made a misstatement. Under the federal doctrine of the law of the case, when a case is decided by an appellate court and remanded for a new trial, any questions that were before the appellate court and disposed of by its decree become the law of the case and bind the district court on remand. See In re Sanford Fork & Tool Co., 160 U.S. 247, 255--58, 16 S.Ct. 291, 40 L.Ed. 414 (1895); 6A Moore's Federal Practice P59.16. In the prior appeal, we were reviewing the district court's determination that the evidence could not be suppressed because it was not permissible for it to delve beneath the face of the affidavit. We were, therefore, not in the position of reviewing any findings of fact regarding what the postal inspectors could have seen. Our statement, quoted earlier, may unfortunately be read broadly; in context, however, it should be taken as indicating our belief that the photographic evidence established that the postal inspectors could not have seen the workshop in the rear of the premises, not as a finding that the inspectors could not and did not see objects in the middle...