U.S. v. Wright

• Decision Date: 08 February 1982
• Docket Number: No. 80-1767,80-1767
• Parties: 9 Fed. R. Evid. Serv. 1493 UNITED STATES of America, Plaintiff-Appellee, v. George Raymond WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 793

667 F.2d 793

9 Fed. R. Evid. Serv. 1493

UNITED STATES of America, Plaintiff-Appellee, v. George Raymond WRIGHT, Defendant-Appellant.

No. 80-1767.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1981.

Decided Feb. 8, 1982.

Donald Marks, Marks & Brooklier, Beverly Hills, Cal., argued, for defendant-appellant; Anthony P. Brooklier, Beverly Hills, Cal., on brief.

Eric L. Dobberteen, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, FARRIS, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

George Raymond Wright was convicted of tax evasion in violation of 26 U.S.C. § 7201. On appeal ¹ he contends that the trial court erred: (1) in denying his motion to dismiss the indictment because of an allegedly erroneous instruction to the grand jury; (2) in denying his motion to suppress evidence obtained pursuant to a warrant authorizing search for a false driver's license because a state drug enforcement officer participated in the search; (3) in denying a motion to suppress a black ledger because it was not "plain view" evidence of a crime; and (4) in admitting evidence of narcotics activity because its prejudicial effect outweighed its probative value. We conclude that it was error not to grant the motion to suppress the black ledger, but that Wright's other contentions lack merit.

FACTS

Special Agent Kelly of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) executed a federal search warrant that authorized the seizure of a California driver's license issued to a "Deborah Luckie" who was believed to be sharing the searched residence with Wright. The license was sought as evidence of alleged federal firearm violations by Ms. Luckie.

The day before executing the warrant Kelly requested the assistance of California Bureau of Narcotics Enforcement Investigator Frantzman. Frantzman had been participating in a large-scale federal narcotics conspiracy investigation involving Wright and others. Kelly invited Frantzman because Wright had a reputation as a major narcotics dealer and Frantzman could provide expertise in narcotics-related matters.

Kelly conducted the search while other agents helped maintain control of the evidence and the premises. While searching for the driver's license in the master bedroom, Kelly found and seized a .38 caliber revolver under the mattress on Wright's side of the bed. Kelly knew that Wright was a convicted felon.

Kelly also found a small black ledger. Apparently he looked through it without finding the license which was the subject of the search. Because of the possibility that it might involve drug trafficking, he brought the book to Frantzman. Frantzman inspected the contents of the book and concluded that it contained narcotics notations. Consequently, the ledger was seized, as were other items including a drum of mannitol ² and approximately $7,000 in cash.

Kelly found the driver's license without searching every room in the house. Following that discovery the search ended.

Some of the receipts and other documents seized by Kelly during the search were turned over to the Internal Revenue Service (IRS) which was investigating Wright's income tax liability. The results of the IRS investigation were later presented to a federal grand jury, which also received instructions concerning the complex net worth method of calculating taxable income. The grand jury returned a three-count indictment against Wright for tax evasion.

At trial, the Government used the net worth method of proof to establish its case and introduced into evidence the black ledger,

the drum of mannitol, and Frantzman's testimony concerning the $7,000 in currency. The Government argued that the evidence supported the inference that Wright's likely source of taxable income was his sale of narcotics. Wright was convicted.

ANALYSIS

I Validity of the Grand Jury Indictment

Wright claims that his conviction must be reversed because his indictment was returned by a grand jury which had been erroneously instructed on a material aspect of the law. Specifically, Wright contends that the prosecutor told the grand jury that it could infer that an increase in net worth was attributable to taxable income which should have been reported. Wright argues that this was erroneous under Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) in that the Government must prove that an increase in net worth was derived from a likely source of taxable income. Wright concedes that the grand jury was exposed to the correct criteria by an expert witness, but contends there is a significant distinction between being instructed by the prosecutor and being informed by a government witness.

Erroneous grand jury instructions do not automatically invalidate an otherwise proper grand jury indictment. See United States v. Linetsky, 533 F.2d 192, 200-201 (5th Cir. 1976). In this Circuit, a grand jury indictment will not be dismissed unless the record shows that the conduct of the prosecuting attorney was flagrant to the point that the grand jury was "deceived" in some significant way. United States v. Cederquist, 641 F.2d 1347, 1352-53 (9th Cir. 1981). The conduct must significantly infringe upon the ability of the grand jury to exercise independent judgment. Id.

The grand jury which indicted Wright was thoroughly informed about the effects of non-taxable income, the permissible presumptions and inferences that it could draw from the evidence, and all the elements of the case the Government had to prove, albeit, in part through the testimony of a government expert witness. ³

Assuming arguendo that the prosecutor's instruction was erroneous, we conclude that the prosecutor's conduct did not significantly infringe on the ability of the grand jury to exercise its independent judgment. United States v. Cederquist, 641 F.2d at 1353. We hold that the grand jury was not "overreached or deceived in some significant way," United States v. Thompson, 576 F.2d 784, 786 (9th Cir. 1978), and that the trial court did not err in denying the motion to dismiss the indictment.

II State Drug Officer's Participation in Search

Wright contends that mannitol was not properly seized as being in "plain view." The plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) creates a three-fold requirement for "plain view" evidence: that the seizing officer have a prior independent justification for being present at the point of observation; that he immediately recognize the item as evidence; and that he discover the evidence inadvertently. Wright contends that officer Frantzman, who discovered and seized the mannitol, had no independent justification for being present. In a prior memorandum decision, a panel of this court held that Kelly and the other agents did not employ the search warrant as a ruse to search generally for incriminating evidence apart from the driver's license. See note 1 supra. That holding binds us under the doctrine of res judicata.

It is clear that an officer executing a search warrant may utilize the assistance of other law enforcement officers. A search warrant may be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such a warrant, but by no other person "except in aid of the officer on his requiring it, he being present and acting in its execution." 18 U.S.C. § 3105.

Kelly, who was present and acting in execution of the warrant required Frantzman to act as an aide. Frantzman thus had an independent justification for being in the residence when he discovered the mannitol in plain view. In United States v. Hare, 589 F.2d 1291, 1296-1298 (6th Cir. 1979) the court upheld the seizure of narcotics and other evidence by drug enforcement agents accompanying ATF agents in the execution of a search warrant for guns. The court relied on the authority of ATF agents to authorize others to assist in the execution of a search warrant. In addition, the court referred to the independent authority of federal drug enforcement agents to execute federal search warrants. Id. at 1298. Assuming as we must that the presence of Frantzman was not in bad faith, there can be no material distinction based on his being a state rather than a federal drug enforcement officer aiding in the search. See United States v. Cox, 462 F.2d 1293, 1306 (9th Cir. 1972) cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1971) (upholding a search conducted by two Federal Bureau of Narcotics agents assisted by two city policemen).

III Seizure of the Black Ledger

The government justifies the seizure of the 5 by 8 black ledger book on the grounds that it was evidence of criminal conduct found in plain view. The plurality opinion in Coolidge summarized the requirements for a plain view seizure.

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification-whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused-and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them ; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

403 U.S. at 466, 91 S.Ct. at 2038 (emphasis added). Justice Stewart explained that the "immediately apparent" limitation to the plain view doctrine was necessarily derived from one of the policies...