United States v. Fofana

• Decision Date: 24 January 2012
• Docket Number: No. 09–4397.,09–4397.
• Citation: 666 F.3d 985
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Fode Amadou FOFANA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

666 F.3d 985

UNITED STATES of America, Plaintiff–Appellant,

v.Fode Amadou FOFANA, Defendant–Appellee.

No. 09–4397.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 11, 2011.Decided and Filed: Jan. 24, 2012.

ARGUED: Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellant. Brian C. DiFranco, DiFranco Law Office, Columbus, Ohio, for Appellee. ON BRIEF: Christopher K. Barnes, Assistant United States Attorney, Cincinnati, Ohio, for Appellant. Brian C. DiFranco, DiFranco Law Office, Columbus, Ohio, for Appellee.Before: MOORE and ROGERS, Circuit Judges; HOOD, District Judge. ^*ROGERS, J., delivered the opinion of the court, in which HOOD, D.J., joined. MOORE, J. (pp. 991–97), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

As a result of a presumably illegal airport search, the Government learned that Fode Fofana used “Ousmane Diallo” as an alias. Identification bearing Diallo's name was previously used to open two bank accounts, through which Fofana allegedly committed bank fraud. In Fofana's federal bank fraud case, the district court suppressed any evidence bearing Diallo's name, and the Government appeals that order. Although the actual documentation seized during the search must be suppressed, evidence obtained legally and independently of the search is not suppressible, even if the Government cannot show that it would have discovered its significance without the illegal search. Under the facts of this case, the minimal deterrent effect of suppression is far outweighed by the sweeping burden on the truth-seeking function of the courts.

I.

On November 29, 2007, two U.S. Bank checking accounts were opened in Cincinnati, Ohio, in the name of Ousmane Diallo. The man produced a passport from Guinea bearing the name Ousmane Diallo for the purpose of opening the accounts, and a photocopy of the passport was added to the record. On February 15, 2008, the IRS directly deposited $3,787 into one of the checking accounts. Diallo withdrew $2,500 from that account before U.S. Bank discovered that the money was a tax return belonging to an individual named Allison Miller. The account was blocked, a police report filed, and U.S. Bank notified the IRS. On December 12, 2008, the IRS made two direct deposits to one of the checking accounts. Those deposits were tax returns belonging to an individual named Christopher Marks. Diallo attempted to make a large cash withdrawal from one of the checking accounts on January 31, 2009, but the transaction was not processed due to the block. The Government alleges that at this point, the Secret Service had already begun an investigation of the accounts.

Later in the day on January 31, 2009, Fofana arrived at the Port Columbus International Airport. His boarding pass was flagged to identify him as a “Selectee” for additional screening. After Fofana presented a valid state driver's license in the name of Fode Fofana at the security checkpoint, the screening agent informed Fofana that he would need to undergo additional screening. During the search of Fofana's personal items, a TSA agent found various envelopes containing large amounts of cash. The TSA agent then found two unsealed envelopes that “contained something hard and unbendable,” but unidentifiable. The TSA agent opened the envelopes and found three passports bearing Fofana's picture but different names. One of the passports contained Fofana's picture and the name Ousmane Diallo.

Upon discovering the passports, the TSA agent contacted law enforcement officers, who subsequently arrested Fofana. The information found pursuant to the search was conveyed to U.S. Bank, and U.S. Bank filed a Suspicious Activity Report (SAR) on February 18, 2009. The bank concluded in the SAR that “the Guinea Passport belonging to Ousmane Diallo was fraudulent” and the actual individual was Fofana.

Fofana was indicted on three counts of possession of a false passport in violation of 18 U.S.C. § 1546(a) as well as two counts of bank fraud in violation of 18 U.S.C. §§ 1344 and 1028A(a)(1). Fofana filed a motion to suppress “all evidence obtained as the result of the unlawful search and seizure of his persons and belongings” at the airport. The district court granted Fofana's motion, finding that the Government failed to meet its burden of establishing that the search was constitutional. The district court concluded that “the extent of the search went beyond the permissible purpose of detecting weapons and explosives and was instead motivated by a desire to uncover contraband evidencing ordinary criminal wrongdoing.” The district court stated that “[a]ny evidence that was seized or subsequently obtained as a result of Fofana's unlawful search, including the three passports, will be suppressed.” The Government consequently moved to voluntarily dismiss the three counts relating to possession of a false passport.

Fofana then filed a motion in limine “to bar introduction of U.S. Bank account records in the name of Ousmane Diallo, U.S. Bank surveillance videos, and photos of Ousmane Diallo and IRS payment records for Ousmane Diallo's U.S. Bank accounts as fruits of the unlawful search.” The district court granted Fofana's motion, concluding that “the Government has not alleged sufficient facts to meet [the] burden of proof to show that the connection of Fofana to his alias would have been made through an independent source or through inevitable discovery.” The district court further concluded that the identity exception to the exclusionary rule did not apply because “Fofana is not challenging the presence of his body or identity, but rather evidence of an alias.” It is this grant of the motion in limine that the Government timely appeals.

II.

There is a difference between evidence that the Government obtains because of knowledge illegally acquired, and evidence properly in the Government's possession that it learns the relevance of because of knowledge illegally acquired. It may be that the latter must be suppressed in some cases. But in the context of the present case, bank records and other evidence that the Government obtained independently of the airport search do not have to be suppressed on account of the unconstitutionality of that search, merely because the relevance or usefulness of that evidence became apparent because of the search.

The reasoning behind this conclusion is strongly supported by case law, although the precise combination of circumstances appears to be unprecedented. First, the actual documents whose suppression is at issue—the bank records reflecting the fraud—were in the possession of the Government entirely free of illegal means. Secondly, the illegal search was not directed to the crime, or even the type of crime, for which the discovered information turned out to be useful, thereby eliminating much of the deterrent effect of suppression in this case. Third, an alternate, more direct deterrent to such searches is clearly present, in the form of excluding the passports from evidence. Fourth, exclusion of the bank records in this case unduly burdens the truth-seeking function of courts by effectively precluding relevant and legitimately obtained evidence from ever being used.

First, the bank records at issue were in the Government's possession entirely free of illegal taint. Indeed, they were largely if not entirely in the Government's possession before the illegal search, and included at least one photograph of Fofana that could link him to the U.S. Bank account once his identity was known. “[T]he government cannot be made worse off because of misconduct than it would have been if the misconduct had not occurred.” United States v. Alexander, 540 F.3d 494, 503 (6th Cir.2008) (citing Nix v. Williams, 467 U.S. 431, 443–44, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). To the extent that any of the records at issue were obtained by the Government after the airport search, our analysis extends only to those records clearly related to the crime regardless of the Government's knowledge of Diallo's identity. Our holding does not extend beyond such records and those in the Government's possession prior to the search.

The importance of the fact that the evidence was properly in the Government's possession is supported by the holdings of the Supreme Court that voluntary testimony of witnesses is admissible even though information from an illegal search led to the witness's testimony. In United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), the Supreme Court upheld the admissibility of a victim's in-court identification of the defendant even though a photo of the defendant used in a preliminary photo lineup had been unconstitutionally obtained. As the plurality reasoned, “the Fourth Amendment violation ... yielded nothing of evidentiary value that the police did not already have in their grasp.” Id. at 475, 100 S.Ct. 1244. Similarly, in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), the Supreme Court upheld the admission of a flower shop employee's testimony impeaching that of a gambling scheme operator accused of perjury where the police learned of the flower shop employee's knowledge as a result of an inquiry following an illegal search of an open drawer in the shop. The Supreme Court emphasized the degree to which the flower shop employee was willing to testify freely, because “[t]he greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.” Id. at 276, 98 S.Ct. 1054. The Court reasoned that “the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify.” Id. at 277, 98 S.Ct. 1054. The underlying idea is that a voluntary witness's testimony is independent...