U.S. v. Migely, 78-1434

• Citation: 596 F.2d 511
• Decision Date: 18 April 1979
• Docket Number: No. 78-1434,78-1434
• Parties: UNITED STATES of America, Appellee, v. William Godfrey MIGELY, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 511

596 F.2d 511

UNITED STATES of America, Appellee, v. William Godfrey MIGELY, Defendant, Appellant.

No. 78-1434.

United States Court of Appeals,

First Circuit.

Argued March 7, 1979.

Decided April 18, 1979.

Nancy Gertner, Boston, Mass., with whom Silverglate, Gertner & Shapiro, Boston, Mass., Marcus S. Topel and Paul D. Wolf, San Francisco, Cal., were on brief, for defendant, appellant.

Robert B. Collings, First Asst. U. S. Atty., Chief, Crim. Div., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before ALDRICH and CAMPBELL, Circuit Judges, and GIGNOUX, District Judge. ^*

LEVIN H. CAMPBELL, Circuit Judge.

On February 13, 1978, William Godfrey Migely applied in Boston for a passport in the name of David Joseph Natta, a deceased infant, presenting a birth certificate and an Oregon driver's license. He was arrested when he returned and signed for the passport the following day, and was convicted of making a false statement in a passport application, 18 U.S.C. § 1542, after a court trial on stipulated facts.

Prior to trial, Migely unsuccessfully moved to suppress all evidence relating to use of the name David Joseph Natta. This motion was accompanied by claims that Migely's arrest had resulted from an illegal, warrantless search of his residence or mail, or else from the illegal inspection of the cover of a letter i. e., a "mail cover" ¹ addressed to his home in Portland, Oregon. In connection with his motion to suppress Migely filed a motion for discovery of the occurrence of any searches made by means of mail covers or otherwise of mail sent to his home in Portland. The discovery request was granted, but the government's response, that there had been "no interception of mail or examination of letters placed in the mail either to or from residences owned or occupied by the defendant in connection with the investigation of the charge contained in the instant indictment,"

was ruled adequate by a federal magistrate. Migely still insisted that an illegal mail cover had occurred, however. He made a motion for further discovery, asking for information concerning any mail covers of mail delivered to his home in Portland, including covers instituted in connection with two West Coast passport fraud and drug violation cases involving him and one Dennis Kelly. This motion was denied at a motions hearing. During the hearing, the Assistant United States Attorney represented that no mail covers had occurred, and that this answer included "all of the investigation that was conducted, and whatever was done by the Government in connection with this Kelly case that has gone on on the West Coast." The prosecutor said that he had discussed the question with the agents involved, that, "No mail covers, searches were made," and that, "There were no surreptitious entries about which the Defendant has any standing to complain."

Migely then asked for an evidentiary hearing, with a view toward examining the agents involved and establishing that mail covers or searches in fact had occurred. The trial court denied this request, as well as the motions for further discovery and to suppress, indicating that it felt that Migely was on a fishing expedition.

Migely appeals on the ground that, "The district court erred in denying defendant's motion for an evidentiary hearing on his motion to suppress made pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure." Although it is not clear that Migely's motion was in fact under Rule 41(e), ² both parties point to cases decided under that rule as setting forth a standard for determining when a defendant is entitled to an evidentiary hearing, and we agree that the same standard would in any event be applicable here.

Evidentiary hearings on motions under Fed.R.Crim.P. 41(e) are not granted as a matter of course; they are required only when a defendant makes a sufficient showing that a warrantless search has occurred. The defendant must allege facts, "sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented." Cohen v. United States, 378 F.2d 751, 761 (9th Cir.), Cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967). The factual allegations must be such that, if proved, would require the grant of relief, Grant v. United States, 282 F.2d 165, 170 (1960), and must be more than "general and conclusory or based upon suspicion and conjecture." Cohen, 378 F.2d at 760; Accord, United States v. Poe, 462 F.2d 195, 197 (5th Cir. 1972), Cert. denied, 414 U.S. 845, 94 S.Ct. 107, 38 L.Ed.2d 83 (1973); United States v. Thornton, 147 U.S.App.D.C. 114, 124 n. 65, 454 F.2d 957, 967 n. 65 (1971); United States v. Cranson, 453 F.2d 123, 126-27 (4th Cir. 1971), Cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972); Cf. Lawn v. United States, 355 U.S. 339, 348-49, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958) (mere suspicions create no due process right to hearing on evidence presented to Grand Jury).

Migely's showing clearly falls short of meeting these standards. The allegations made in Migely's affidavits in support of his motion to discover and to suppress can be fairly summarized as follows: The FBI and the Drug Enforcement Administration had been investigating Dennis Kelly for possible passport violations involving the use of birth certificates of deceased infants. They had observed that Kelly was spending considerable time and perhaps residing at Migely's house in Portland, Oregon, and had kept the house under surveillance. In the spring of 1975 they had conducted a warrantless search of a warehouse rented by Kelly. That December, the Department of Vital Statistics in Portland sent, on request, the birth certificate of David Joseph Natta to Migely's house, which had a "flip-top" mail box. Within several days after the certificate was sent the government received a copy of Natta's death certificate from the Department of Vital Statistics. When Migely applied for the passport in Boston over two years later, a computer check was run and led to his arrest. The government's questioning of Migely immediately thereafter focused on the West Coast investigation of Kelly.

Migely asks us to infer from these facts that a mail search violating his fourth amendment rights must have occurred. But these facts are...