U.S. v. Tamura

• Citation: 694 F.2d 591
• Decision Date: 10 December 1982
• Docket Number: No. 80-1838,80-1838
• Parties: 12 Fed. R. Evid. Serv. 199 UNITED STATES of America, Plaintiff-Appellee, v. Leigh Raymond TAMURA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 591

694 F.2d 591

12 Fed. R. Evid. Serv. 199

UNITED STATES of America, Plaintiff-Appellee, v. Leigh Raymond TAMURA, Defendant-Appellant.

No. 80-1838.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1981.

Decided Dec. 10, 1982.

George Buehler, Los Angeles, Cal., for defendant-appellant.

John W. Spiegel, Asst. U.S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Dean B. Allison, Asst. U.S. Atty., Los Angeles, Cal., on brief.

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

Before FLETCHER and NORRIS, Circuit Judges, and VON DER HEYDT, ^* District Judge.

FLETCHER, Circuit Judge:

Leigh Raymond Tamura appeals from his conviction on 59 counts of bribery, mail and wire fraud, conspiracy, racketeering, and Travel Act violations. He contends that the district court prejudicially erred in: (1) refusing to suppress evidence seized during a search of his employer's premises; (2) admitting telex messages that Tamura contends were hearsay; (3) refusing to grant Tamura a brief continuance and to take other steps that Tamura contends were necessary to enable him to meet surprise testimony introduced by the prosecution; and (4) failing to give appropriate jury instructions on the guilty pleas and credibility of the prosecution's two main witnesses. We affirm.

I

Tamura's conviction stems from a kickback scheme involving his employer, Marubeni America Corporation (Marubeni), an American subsidiary of a Japanese corporation. Marubeni imports telephone cable manufactured by a Japanese corporation, Hitachi Cable, Ltd. Between 1970 and 1978, Marubeni won approximately $9 million in contracts from Anchorage Telephone Utility (ATU) to supply telephone cable to the City of Anchorage, Alaska. ATU is a municipally owned utility that buys cable through competitive bidding. Under ATU's bidding system, bidders must quote a price on every type and size of cable that might conceivably be needed during the contract period, even though only a few of these items will actually be purchased.

By bribing ATU engineer Richard L. McBride, Marubeni and Hitachi Cable were able to rig the bidding. McBride would tell Marubeni and Hitachi which kinds of cable ATU did not plan to purchase. Marubeni would then bid artificially low on these "non-buy" items and thus win the contract even though Marubeni was not the lowest bidder on the items actually purchased.

To get the bribe money to McBride, Marubeni funnelled it through its agent in Anchorage, Forrest J. Ellis, who deducted his share and gave McBride the rest in cash. The transactions with Ellis were carried out by the nonferous metals department (Metals II Department) of Marubeni's Los Angeles office. Tamura worked as a salesman in the Metals II Department from 1970 until 1975, when he became manager of the department.

In May, 1978, Tamura's secretary discovered the bribery scheme and told the FBI about it. A grand jury indicted Tamura, McBride, Ellis, Marubeni, Hitachi Cable, and Naoto Kudo (an employee of Hitachi Cable). McBride, Ellis, and Hitachi Cable pleaded guilty. Pursuant to plea bargains, McBride and Ellis testified against Tamura and Marubeni, who were tried together and convicted on all counts. Kudo remains a fugitive.

At trial, both Tamura and Marubeni conceded that Marubeni paid large sums to McBride and that McBride provided confidential "non-buy" information in return. Marubeni's defense was that McBride had extorted the payments; Tamura's, that he was unaware of the bribery scheme.

II The Search of Marubeni Offices

On June 8, 1978, thirteen FBI agents entered Marubeni's Los Angeles office with a search warrant. The warrant authorized them to find and seize three categories of records in the Metals II Department and Accounting Department:

1. Records of contracts for the sale of cable from Marubeni to ATU between January 1, 1974 and June 8, 1978.

2. Records of payments to McBride and Ellis during the same four and one-half year period.

3. Records of travel by McBride, Ellis, Tamura, and two other individuals between Los Angeles, Anchorage, and the Republic of Panama for the period February 1, 1976 to June 8, 1978.

To find the relevant records in the accounting department, the agents had to perform three steps: (1) review a computer printout, (2) locate the voucher that corresponded to a particular payment recorded on the printout; and (3) find the check that corresponded to the voucher. After following this procedure for a short time, the agents concluded that it would take a long time to find all the records they were looking for unless Marubeni's employees helped them. But the employees refused to help. The agents then told the employees that if they did not help with the search, the FBI would seize all Marubeni's accounting records for the years in question.

When the employees persisted in their refusal, the FBI agents carried out this threat. In all, they seized 11 cardboard boxes of computer printouts, which were bound in 2000-page volumes; 34 file drawers of vouchers, also bound in 2000-page volumes; and 17 drawers of cancelled checks, which were bundled into files. The agents hauled all these records to another location, where they sifted through them and extracted the relevant documents.

Tamura does not contest the validity of the search warrant. Nor does he assert that the FBI agents searched any areas or files where they did not reasonably expect to find the documents specified in the warrant. He challenges only the scope of the seizure.

When the agents seized all Marubeni's records for the relevant time periods, they took large quantities of documents that were not described in the search warrant. The Government argues that the seizure was reasonable because the documents were intermingled and it was difficult to separate the described documents from the irrelevant ones. Tamura maintains that the FBI agents either should have remained on the premises until they had extracted all the relevant documents or should have obtained a warrant to seize the additional documents.

It is highly doubtful whether the wholesale seizure by the Government of documents not mentioned in the warrant comported with the requirements of the fourth amendment. As a general rule, in searches made pursuant to warrants only the specifically enumerated items may be seized. ¹ United States v. Honore, 450 F.2d 31, 33 (9th Cir.1971), cert. denied, 404 U.S. 1048, 92 S.Ct. 728, 30 L.Ed.2d 740 (1972) (citing Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1964)). It is true that all items in a set of files may be inspected during a search, provided that sufficiently specific guidelines for identifying the documents sought are provided in the search warrant and are followed by the officers conducting the search. Cf. United States v. Hillyard, 677 F.2d 1336, 1340-41 (9th Cir.1982). However, the wholesale seizure for later detailed examination of records not described in a warrant is significantly more intrusive, and has been characterized as "the kind of investigatory dragnet that the fourth amendment was designed to prevent." United States v. Abrams, 615 F.2d 541, 543 (1st Cir.1980). ² We cannot sanction the procedure followed by the Government in this case.

In the comparatively rare instances where documents are so intermingled that they cannot feasibly be sorted on site, we suggest that the Government and law enforcement officials generally can avoid violating fourth amendment rights by sealing and holding the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute's Model Code of Pre-Arraignment Procedure. ³ If the need for transporting the documents is known to the officers prior to the search, they may apply for specific authorization for large-scale removal of material, which should be granted by the magistrate issuing the warrant only where on-site sorting is infeasible and no other practical alternative exists. See United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982). The essential safeguard required is that wholesale removal must be monitored by the judgment of a neutral, detached magistrate. ⁴ In the absence of an exercise of such judgment prior to the seizure in the present case, it appears to us that the seizure, even though convenient under the circumstances, was unreasonable.

We likewise doubt whether the Government's refusal to return the seized documents not described in the warrant was proper. The Government refused to return these documents unless Marubeni stipulated to their authenticity, insisting that it had to leave the documents in their original master volumes in order to authenticate them at trial. Shortly before trial, the Government obtained the desired stipulations from Marubeni. Although it is unclear exactly when the Government returned the master volumes, the Government kept them for at least six months after locating the relevant documents.

The Government did not need the master volumes to authenticate the documents introduced at trial. The testimony of the agents who removed the documents from their master volumes would have sufficed for this purpose. See, e.g., United States v. Helberg, 565 F.2d 993, 997 (8th Cir.1977). Moreover, it was highly improper for the Government to retain the master volumes as a means of coercing Marubeni employees to stipulate to the authenticity of the relevant documents. The Government's unnecessary delay in returning the master volumes appears to be an unreasonable and therefore unconstitutional manner of executing the warrant.

Regardless of the illegality of the Government's seizure and retention of documents not covered by the warrant, however, reversal is not compelled in this case. All of the documents introduced at trial were seized and retained lawfully because described in and therefore taken pursuant to the valid search warrant....