U.S. v. Allison

• Decision Date: 28 April 1980
• Docket Number: No. 79-1816,79-1816
• Citation: 619 F.2d 1254
• Parties: UNITED STATES of America, Appellant, v. Bobby Eugene ALLISON, James William Spires, James Lonnie Greer, Marvin L. Robinson, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1254

619 F.2d 1254

UNITED STATES of America, Appellant, v. Bobby Eugene ALLISON, James William Spires, James Lonnie

Greer, Marvin L. Robinson, Appellees.

No. 79-1816.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 18, 1980.

Decided March 12, 1980.

Rehearing and Rehearing En Banc Denied April 28, 1980.

Samuel A. Perroni, Sp. Asst. U.S. Atty., Little Rock, Ark., for appellant; George W. Proctor, U.S. Atty., Sandra W. Cherry, Asst. U.S. Atty., Little Rock, Ark., on the brief.

William R. Wilson, Jr., Little Rock, Ark., and John F. Forster, Jr., Wallace, Hilburn, Clayton, May & Calhoon, North Little Rock, Ark., for appellee; Jack T. Lassiter, McArthur & Lassiter and James L. Sloan, Little Rock, Ark., on the brief.

Before GIBSON, Senior Circuit Judge, and ROSS and HENLEY, Circuit Judges.

ROSS, Circuit Judge.

The United States appeals from the decision of the district court ¹ to suppress evidence which was objected to on fourth amendment grounds by defendants/appellees Bobby Eugene Allison, James William Spires, James Lonnie Greer and Marvin L. Robinson. The evidence in question consists of records of the Laborers International Union of North America, Local 1282, which were obtained by agents of the Federal Bureau of Investigation pursuant to a grand jury subpoena duces tecum. The district court held that the agents' search and seizure of the records after presentment of a subpoena duces tecum, without informing the union officials of their legal rights regarding a subpoena duces tecum, constituted both a misuse of the writ and a violation of the fourth amendment's prohibition against unreasonable searches and seizures. The district court also found that the subpoena duces tecum had been improperly served and that the consent given for the agent's search was therefore invalid. Finally, the court implicitly ruled that each of the defendants had "standing" to challenge the admission of records into evidence on fourth amendment grounds.

The defendants were indicted by a federal grand jury in Arkansas on October 2, 1978, for conspiracy, racketeering in violation of 18 U.S.C. § 1962(c) and (d), subornation of perjury and making false declarations to a grand jury in violation of 18 U.S.C. §§ 1622 and 1623, and embezzlement of union funds in violation of 29 U.S.C. § 501(c). The trial began on May 29, 1979, and three days later, through an oral motion, the defendants moved to suppress the admission into evidence of all union records which were obtained after the service of the subpoena duces tecum. A suppression hearing was held on May 31 and June 1, 1979. The motion was then denied. On June 5, a mistrial was declared on grounds wholly unrelated to the issues before us here.

While a retrial of the case was pending, a second suppression hearing was held. On August 17, 1979, the testimony of an F.B.I. agent raised several questions relating to the trial court's factual findings in the first suppression hearing. The court then adjourned until some of the original witnesses could be brought back in for further questioning.

On August 29, a third hearing was convened, at the close of which the district court reversed its previous holding and granted the defendants' motion to suppress the records. The government thereafter suggested that the records were essential to the prosecution of its case, and the court agreed that an appeal directly from the evidentiary ruling would be appropriate.

On appeal, pursuant to 18 U.S.C. § 3731, the government takes exception only to the district court's conclusions of law. Therefore, that court's factual findings provide the background for our review of this matter.

The issues before us arose out of an investigation of Local 1282 which was conducted by F.B.I. special agent Danny D. Sisco. In November 1977 Sisco was informed of the activities of certain officials of the local, including some of the defendants in this appeal, and he had read newspaper accounts of possible embezzlement and misappropriation of the local's funds. In order to further investigate, the agent requested the issuance of a grand jury subpoena duces tecum for the production of certain records of the local. The district court noted that the problems before us would never have arisen if a search warrant had been issued. The court also noted, however, that there was some question as to whether a proper showing for a warrant could be made.

Agent Sisco was aware that a state subpoena for portions of the local's records had previously been issued and was never complied with. A fire, which occurred within 24 hours of the service of the state's subpoena, destroyed some of the records. Great care was therefore taken by the agents to assure that the service of the grand jury subpoena duces tecum did not bring about an attempt to destroy the records. The agents planned to remain at the union headquarters until all of the records were secured. Several knockdown cardboard boxes were taken to the union headquarters along with a roll of evidence tape. In addition, Mr. Perroni, an Assistant United States Attorney, advised agent Sisco to gain permission to assist in the assembling of the records and, once assembled, to volunteer to transport the records to the Federal Building.

The subpoena was addressed to Mr. Allison, who was mistakenly believed to be the custodian of the records. It directed Mr. Allison to appear before the grand jury at 9:30 a. m. on February 10, 1978, and to bring with him certain records and documents from the union's files. The agents arrived at the union headquarters at some time shortly after 8 o'clock a. m. on February 10, and were informed that Mr. Allison was not there. They were shown instead to Mr. Greer's office, who was Secretary-Treasurer of the local, and the actual custodian of the records. The subpoena duces tecum was served on Greer.

Although a reading of the transcripts in this case raises several questions as to what happened next, it is clear that there is sufficient evidence in the record to support the district court's factual determination that Greer had consented to the search. The district court found that Agent Sisco presented Greer with a subpoena duces tecum for the records, stating that they were there to get them, to which Greer responded, "Fine. We do not have anything to hide." Additionally, the district court found:

Although I do not think it is pertinent here, the Court has stated before and he is convinced, although it's speculative to a certain extent, that had Mr. Greer been thoroughly advised of all his rights, he nevertheless would have consented. He was in a consenting frame of mind and a cooperative frame of mind. That's quite clear.

The facts which bear out the trial court's conclusion are numerous. There was initially some uncertainty, for example, as to whether Greer could gather all of the records together. The F.B.I. agents were, however, eager to render their aid, so Greer led them to the records room. Greer subsequently helped the agents in identifying the pertinent documents and records, and arranged for a light and a portable heater to be placed in the room. He initialed the evidence tape on all of the boxes of records which had been gathered, and acquiesced when the agents offered to transport the boxes to the United States Attorney's office. At one point in the gathering and boxing of the records, Greer even had coffee served to the government agents. The inescapable conclusion from this review of the facts is that the district court correctly held that Greer consented to the search.

It also appears from the record that Mr. Greer consented to the actual seizure of the union's records. The district court found that:

Mr. Sisco advised Mr. Greer if the latter wanted the agents to, they, the agents, would haul the records down to the Federal Building; and Mr. Greer readily accepted their offer.

There are, however, two questions which controlled the district court's decision to suppress the evidence. The first is whether the wielding of a subpoena duces tecum was a false assertion of legal authority to conduct the search which negated the voluntariness of Greer's consent. The second is whether, in light of the fact that the subpoena duces tecum was addressed to Allison, Greer could give legal consent to the search conducted pursuant to the writ. In holding that there was no legal consent to the agents' search, the district court focused on both of these issues.

The first basis for the district court's holding is that the exhibiting of the subpoena duces tecum in obtaining Greer's consent negated the voluntariness of his consent and cooperation. Such a procedure raised questions, in the mind of the trial court, of possible abuses of the power of a grand jury. Moreover, the court specifically found that neither Allison ² nor Greer knew the actual legal effect of a subpoena duces tecum or their right to object to a search by the officers serving it. Therefore the earlier conclusion that there was no illegal search was withdrawn, and the court held that, "as a matter of law, whatever acquiescence, cooperation, or consent were, in fact, given by Mr. Greer or Mr. Allison, it was insufficient to meet the legal standards that obtain in situations like this."

The court then set out to define the legal standards which obtain in situations such as this. The standards which pertain to the normal consent search situation were rejected in favor of more stringent ones: "When a subpoena duces tecum is used this way, the Court concludes that the agents had no alternative but to advise Mr. Greer of his legal rights or otherwise to show that he was aware of those rights before they could rely on any consent thereafter given." The standard suggested by the court is thus one of proving "knowing and informed consent."

The second basis for the court's holding is that there was no valid consent in this case because it was not obtained from the person...