601 F.2d 28 (1st Cir. 1979), 78-1446, United States v. Cortellesso

Docket Nº:78-1446.
Citation:601 F.2d 28
Party Name:UNITED STATES of America, Appellant, v. Albert A. CORTELLESSO et al., Defendants, Appellees.
Case Date:June 29, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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601 F.2d 28 (1st Cir. 1979)

UNITED STATES of America, Appellant,

v.

Albert A. CORTELLESSO et al., Defendants, Appellees.

No. 78-1446.

United States Court of Appeals, First Circuit

June 29, 1979

Argued March 6, 1979.

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Frank J. Marine, Atty., Dept. of Justice, Washington, D.C., with whom Paul F. Murray, U. S. Atty., Edwin J. Gale, Providence, R.I., and Richard Gregorie, Sp. Attys., Boston Strike Force, Dept. of Justice, Boston, Mass., and William G. Otis, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellant.

Kirk Y. Griffin, Boston, Mass., with whom John Tramonti, Jr., Providence, R.I., and Griffin & Higgins, Boston, Mass., were on brief, for defendants, appellees.

Before ALDRICH and CAMPBELL, Circuit Judges, and CAFFREY, District Judge. [*]

CAFFREY, District Judge.

This is an appeal taken by the United States pursuant to provisions of 18 U.S.C. § 3731 from orders of the District Court suppressing evidence. The first of these orders, entered June 30, 1978, suppressed evidence seized pursuant to search warrants issued April 1, 1977. A second order, entered on October 4, 1978, suppressed evidence seized pursuant to search warrants issued April 4, 1977 on the theory that the April 4 warrant was obtained as a result of

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observations made and information learned while executing the April 1 warrants which the District Court had already declared to be unlawful. Thus this case turns on the validity of the April 1 warrants and the orders suppressing evidence obtained thereunder.

Affidavits of Special Agents Roderick J. Kennedy and Bernard Murphy of the Federal Bureau of Investigation furnished the basis for warrants to search and seize for

stolen goods, wares and merchandise valued in excess of $5,000 which have travelled in interstate commerce, in particular men's suits, sports jackets, women's boots, leather coats, fur coats, rain coats, inventory records, bills, sales records, bills of sale and any document which shows proof of purchase, value and origin of shipment, which are evidence of violations of Title 18, United States Code, Sections 2314, 2315 and 371 1

from Chi Chi's Ltd. a clothing store located in Providence, Rhode Island, owned by Albert A. Cortellesso, a/k/a Chi Chi, a/k/a Cheech, and from his home in North Providence, Rhode Island. FBI agents executed the warrants with the assistance of a Special Attorney from the United States Department of Justice and an Assistant United States Attorney. They entered the premises of Chi Chi's Ltd. and seized from clothing racks 23 Pierre Cardin suits, 5 suede sport jackets, and 25 cashmere coats plus other items which are not the subject matter of the indictment. On the same day, FBI agents, under the supervision of Special Agent Kennedy, entered Cortellesso's home and there they seized two handguns and some children's clothing bearing the name "Health Tex" along with other items which are not in issue. Goods observed but not seized on April 1 provided the basis for the April 4 warrant under which the agents returned to Cortellesso's home and store and seized from Chi Chi's Ltd. articles named in the April 4 warrant.

Thereafter, Cortellesso and Ralph Altieri, his son-in-law, an employee at Chi Chi's Ltd., were indicated for conspiracy to possess and conceal stolen goods which had moved in interstate commerce in violation of 18 U.S.C. §§ 371, 659, 2315, and with receiving and concealing goods stolen from an interstate shipment in violation of 18 U.S.C. §§ 2315, 2. Cortellesso was additionally charged with possession of goods stolen from an interstate shipment in violation of 18 U.S.C. § 659, with removing property before its seizure in violation of 18 U.S.C. § 2232, and with possession of a firearm as a previously convicted felon in violation of 18 U.S.C. App. § 1202(a)(1).

The District Court granted defendant's motion to suppress on the ground that the April 1 warrants failed to particularly describe the items to be seized. In so holding the District Court relied chiefly on Montilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324 (1st Cir. 1978) and United States v. Klein, 565 F.2d 183 (1st Cir. 1977).

On appeal, the government raises several arguments. Because we reverse and hold that the warrants in question did meet the particularity...

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