United States v. Hall

Decision Date05 March 1984
Docket NumberCrim. No. 83-00050-R.
CourtU.S. District Court — Eastern District of Virginia
PartiesUNITED STATES of America v. William Joseph HALL.

N. George Metcalf, Asst. U.S. Atty., Richmond, Va., for plaintiff.

ORDER AND OPINION

WARRINER, District Judge.

Presently before the Court is an application of the United States Attorney for the Eastern District of Virginia by N.G. Metcalf, Assistant United States Attorney for the Eastern District of Virginia, for an order for production of Master Card credit card records pursuant to the All Writs Act, Title 28 U.S.C. § 1651.

On 23 June 1983, the defendant, William Joseph Hall, was indicted in this Court for violations of 18 U.S.C. § 751. On 15 August 1983, a warrant for his arrest was issued. Since that time, however, the defendant has concealed himself and remains a fugitive. On 2 August 1982, an associate of defendant Hall, one Jerry M. Fields, was in the Jacksonville, Florida, area using a Master Card credit card of Kathleen H. Manning, a previous girlfriend of Hall's, and still believed to be in close contact with him. Kathleen Manning was also in the Jacksonville, Florida area at that time, but an attempt made by the United States Marshal in Jacksonville to apprehend Hall in Manning's motel room was unsuccessful. Since 2 August all contact was lost with Manning, Fields, and Hall, but on 28 November 1983, information was developed by the Marshal that defendant Hall recently transferred two parcels of real estate to Kathleen Manning.

On the strength of this sequence of events, sworn to by affidavit, the United States Attorney has sought an order from this Court directing the Citibank, Mastercard Division, Melville, New York, to produce the Master Card credit card records for Account No. XXXX-XXXX-XXXX-XXXX subscribed to by Kathleen H. Manning, whose last known address was 7818 Bothwell Street, Reseda, California, for the period August 2, 1981 to the present.

The United States relies on Title 28 U.S.C. § 1651, the All Writs Act, which provides:

The Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

The statute is in no way jurisdictional; it neither enlarges nor expands jurisdiction of the court; it may be invoked only to aid jurisdiction which the Court already has. United States ex rel Wisconsin v. First Federal Savings & Loan Association, 248 F.2d 804, 808 (7th Cir.1957), cert. denied, 355 U.S. 957, 78 S.Ct. 543, 2 L.Ed.2d 533. See also Benson v. State Board of Parole and Probation, 384 F.2d 238, 239 (9th Cir.1967), cert. denied, 391 U.S. 954, 88 S.Ct. 1860, 20 L.Ed.2d 869. Thus, while 28 U.S.C. § 1651 may be relied upon by the courts in issuing orders appropriate to assist them in conducting factual inquiries, Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 (1969), reh. denied, 394 U.S. 1025, 89 S.Ct. 1623, 23 L.Ed.2d 50, the All Writs Act is not a means by which a district court may extend its authority in areas where it otherwise has no jurisdiction.

As the United States candidly admits in its brief, there is neither statutory nor case law which specifically allows or forbids a district court to issue an order by which a bank may be compelled to produce the credit card records of an individual because that individual has been the known consort of a fugitive. The closest parallel developed by the courts has been the series of cases involving the installation of telephone pen registers. The case which is simultaneously the acme of such litigation and the standard by which such procedures are now judged is United States v. New York Telephone Company, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977).

In New York Telephone, the Supreme Court held that a district court had ample authority to do two things: (1) to order installation of such pen registers and (2) to force the New York Telephone Company to assist the Federal Bureau of Investigation in doing so. New York Telephone at 169 and 171, 98 S.Ct. at 370 and 372. The Supreme Court, mindful that the All Writs Act cannot be used to extend jurisdiction, looked first at the independent authority the district court had to issue that portion of the pen register order authorizing agents of the FBI to install and use pen registers. The Court found first that Title III of the Omnibus Crime Act, dealing as it does with the aural interception of telephone conversations, could not provide that jurisdictional basis. The Court then looked at Fed.R.Crim.P. 41(b) which authorizes the issuance of a warrant to:

Search for and seize any (1) property that constitutes evidence of the commission of criminal offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense.

The Court, making reference to its earlier holding in Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), stated that Rule 41 is not limited to tangible items but is flexible enough to include electronic intrusions authorized upon a finding of probable cause. The Court found support for its conclusion that Rule 41 authorizes the use of pen registers by Fed.R.Crim.P. 57(b), which provides: "If no procedure is specifically prescribed by Rule, the court may proceed in any lawful manner not inconsistent with these Rules or with any applicable statute." The Supreme Court concluded that Rule 41, buttressed by Rule 57(b), was sufficiently broad to include seizures of intangible items, such as dial impulses recorded by pen registers, as well as tangible items. New York Telephone, 434 U.S. at 170, 98 S.Ct. at 371.

In applying this threshold jurisdictional test to the facts of the case before this Court, it is apparent that credit card records qua records have no inherent nature, no quality, that would render them not seizable by a properly executed search warrant. Although these records exist as electronic impulses in the storage banks of a computer, a paper print-out will contain information such as that sought by the United States Attorney. Reasoning analogously, if the Supreme Court has held that an intangible, such as an electronic dial impulse emitted by a telephone may be "seized" and recorded, there is no difficulty in saying that the records of purchases and loans made on a given credit card account number cannot also be seized, provided the Court has an independent jurisdictional basis for its order.

In the present case the basis is in some respects more clear than it was in New York Telephone. Defendant is a fugitive from the duly issued warrant of arrest from this Court. Rule 41 in tandem with Rule 57(b) assuredly permits seizure of property such as the record of credit card expenditures evidencing defendant's continued criminal activity, viz., remaining a fugitive. There is, in short, a jurisdictional basis under the Federal Rules of Criminal Procedure similar to that found to exist by the Supreme Court in New York Telephone.

The key question here, and the one which the Supreme Court addressed next in New York Telephone, was whether or not a third party could be compelled by court order to assist the FBI in installing such pen registers. The Supreme Court stated at 172-73, 98 S.Ct. at 372:

This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained: this statute has served since its inclusion, in substance, in the original Judiciary Act as a "legislatively approved source of procedural instruments designed to achieve the `rational ends of law.'" Harris v. Nelson, 394 U.S. 286, 299 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 ... (1969), quoting Price v. Johnston, 334 U.S. 266, 282 68 S.Ct. 1049, 1058, 92 L.Ed. 1356 ... (1948). Indeed, `unless appropriately confined by Congress, a federal court may avail itself of all auxiliary writs as aids in the performance of its duties when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.' Adams v. United States ex rel McCann, 317 U.S. 269, 273 63 S.Ct. 236, 239, 87 L.Ed. 268 (1942).

The Supreme Court clearly recognized in New York Telephone, however, that the power of a district court to use the All Writs Act to compel a third party to assist its processes was not unlimited and accordingly established three requirements which set the boundaries for the use of the All Writs Act to order a third party to assist law enforcement agencies: (1) the third party must be closely connected with the underlying controversy—in New York Telephone, a gambling investigation; here, location of a fugitive; (2) the order must not adversely affect the basic interests of the third party or impose an undue burden; (3) the assistance of the third party must be absolutely necessary.1

These tests are drawn from an analysis of the Supreme Court's discussion of New York Telephone's refusal to lease lines to the FBI which were needed to install the pen registers in an unobtrusive fashion. The telephone company had suggested instead that the agency string cables from the subject apartment to another location. New York Telephone, 434 U.S. at 174-77, 98 S.Ct. at 373-74. The FBI determined that to follow the company's advice would be to defeat its investigatory purposes because the suspects would become alarmed. The Supreme Court stated first that the telephone company was not so far removed from the underlying controversy that its assistance could not permissibly be compelled; a United States District Court had found probable cause to believe the company's facilities were being employed to facilitate...

To continue reading

Request your trial
9 cases
  • In re Order Requiring Apple, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • 29 Febrero 2016
    ...company ordered to produce toll records); United States v. X., 601 F.Supp. 1039, 1042 (D.Md.1984) (same); United States v. Hall, 583 F.Supp. 717, 722 (E.D.Va.1984) (bank ordered to produce credit card records); In re Application of the United States for an Order Directing X to Provide Acces......
  • U.S. v. Torres
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 25 Marzo 1985
    ...subscriber is dialing). See also Michigan Bell Tel. Co. v. United States, 565 F.2d 385, 388-89 (6th Cir.1977); United States v. Hall, 583 F.Supp. 717, 718-19 (E.D.Va.1984). Although the language of Rule 41 is that of conventional searches (see especially subsection (b)), the Court in the Ne......
  • In re an Application of the U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel.
    • United States
    • U.S. District Court — District of Maryland
    • 3 Agosto 2011
    ...mother of the subject of an arrest warrant where the subject failed to appear and had attained fugitive status); United States v. Hall, 583 F.Supp. 717, 722 (E.D.Va.1984) (authorizing provision of credit card records belonging to the previous girlfriend of a federal fugitive where the credi......
  • In re An Application of U.S. for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, CASE NO. 10-2188-SKG
    • United States
    • U.S. District Court — District of Maryland
    • 3 Agosto 2011
    ...mother of the subject of an arrest warrant where the subject failed to appear and had attained fugitive status); United States v. Hall, 583 F. Supp. 717, 722 (E.D. Va. 1984) (authorizing provision of credit card records belonging to the previous girlfriend of a federal fugitive where the cr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT