723 F.2d 649 (9th Cir. 1984), 82-1459, United States v. Gomez-Soto

Docket Nº:82-1459.
Citation:723 F.2d 649
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Robert GOMEZ-SOTO, Defendant-Appellant.
Case Date:January 09, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 649

723 F.2d 649 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jose Robert GOMEZ-SOTO, Defendant-Appellant.

No. 82-1459.

United States Court of Appeals, Ninth Circuit

January 9, 1984

Page 650

[Copyrighted Material Omitted]

Argued and Submitted Sept. 12, 1983.

Page 651

Eric J. Swenson, Sandra Teters, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

Kenneth M. Quigley, San Francisco, Cal., for defendant-appellant.

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

Before CHOY and NORRIS, Circuit Judges, and CURTIS, [*] District Judge.

CURTIS, District Judge:

Appellant Gomez-Soto (Gomez) appeals his conviction of violating Title 21 U.S.C. Sec. 963 [conspiracy to import cocaine]; Title 21 U.S.C. Sec. 846 [conspiracy to distribute cocaine]; and three counts of violating Title 26 U.S.C. Sec. 7201 [income tax evasion]. Gomez was tried and convicted by the court below, sitting without a jury.

Gomez asserts that: (1) the evidence seized by virtue of the March 19, 1981 search warrant was improperly admitted against him, because the warrant authorizing the search was so general in nature as to violate the fourth amendment; (2) closed containers found within the area to be searched, but not particularly described on the face of the warrant, were impermissibly searched and the contents seized; and finally, there was insufficient evidence to convict him of income tax evasion, as the government used the "net worth" method of computation without a proper foundation.

Believing as we do that none of these contentions have merit, we affirm.

STATEMENT OF FACTS

On March 19, 1981, a warrant [**] was issued authorizing the search of Gomez's

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home in Woodside, California, based upon an affidavit submitted by a DEA agent.

In executing the warrant, among the objects found on the premises and subsequently searched and seized were a Gucci bag (characterized in the argument as a "briefcase") and a microcassette tape. The Gucci bag was locked. Gomez was asked for the combination of the lock, and upon his declaration of his inability to recall it, the agents cut open the bag and seized its contents, which, in fact, was cocaine. The microcassette was found on top of a dresser in the bedroom closet and contained statements incriminating Gomez.

On March 26, 1981, two more search warrants were issued. The first authorized a further search of the Gomez residence, and the second called for the search of a safe deposit box in the Menlo Park branch of the Bank of America. The affidavit submitted in support of the second set of warrants contained a recitation of facts gleaned from the earlier search. Thus, if the March 19 warrant is overbroad, the fruits of the second set of warrants must be suppressed as tainted.

At the trial, in seeking to determine Gomez's tax liability, the "net worth" method was used. In its computation, the government assumed that the assets of three Columbian corporations were the personal assets of Gomez. According to the affidavit, the appellant and his wife were the sole signators on the bank accounts of the corporations, the corporations' addresses were that of the appellant, and a number of items of a personal nature (automobile, jacuzzi, liquor, antiques, toys, etc.) were paid for out of these accounts. There was no evidence that the accounts were used for a business purpose. The corporations were purportedly in the lumber export trade, but, in fact, were means by which the appellant smuggled cocaine into the United States in the inside of hollow wooden doors and posts.

THE WARRANT WAS NOT OVERBROAD

Understandably the appellant makes no contention that the warrant lacks probable cause, for the underlying affidavit sets forth in great detail and particularity the nature and scope of appellant's activities. Appellant contends only that the warrant is so non-specific and overbroad as to constitute a "general warrant" prohibited by the Fourth Amendment of the United States Constitution, which provides in relevant part:

[A]nd no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It was, of course, fear of general warrants and indiscriminate rummaging among personal belongings which motivated the adoption of the fourth amendment. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure

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of one thing under a warrant describing another. As to what is taken, nothing is left to the discretion of the officer executing the warrant.

Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). Although technical precision of description is not required, United States v. Drebin, 557 F.2d 1316, 1322 (9th Cir.1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978), the warrant must so circumscribe an officer's actions that the issuing magistrate can determine that the "search in all of its dimensions is based upon probable cause and particular descriptions." United States v. Hillyard, 677 F.2d 1336, 1339 (9th Cir.1982).

Although appellant challenges the entire warrant, he makes particular reference only to the broad descriptions of Items 4, 6, 7, 8 and 12, which we discuss seriatim.

Item 4 authorizes the search for and seizure of "representative original samples of handwriting, including writings in the Spanish language." Only an overly-technical reading could render Item 4 insufficiently particular. "Representative," although indicating no precise number, connotes a limited number of papers. Read in light of its purpose--to obtain a handwriting exemplar--Item 4 authorizes the seizure of only a very limited number of papers. Furthermore, since the samples were sought for the limited purpose of handwriting comparison, a magistrate could not be expected to describe any more particularly the specific papers to be seized.

Item 6 authorizes the seizure of documents indicative of appellant's residence or citizenship. This item specifically describes the types of documents sought and describes the contents thereof. In United States v. Honore, 450 F.2d 31 (9th Cir.1971), cert. denied, 404 U.S. 1048, 92 S.Ct. 728, 30 L.Ed.2d 740 (1972), we upheld against a particularity challenge, a warrant including a similar description. The Honore warrant authorized the seizure of "articles ... tending to establish the identify [sic] of persons in control of the premises ... including but not limited to utility company receipts, rent receipts, cancelled mail envelopes, and keys." 450 F.2d at 33. Item 6 is no less particular.

Appellant objects to the description in Item 7 which calls for the seizure of records of international travel. Appellant contends that the lack of limitation as to time renders the item overbroad. However, testing Item 7 in a "commonsense and realistic fashion," as we must, (United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965)), it is valid. Unlike most of the descriptions in this warrant, Item 7 was not expressly limited to events occurring after January 1, 1976. Any international travel records available would, however, likely be related to appellant's current or recent activities--activities well within the scope of the probable cause underlying the warrant.

Item 8 authorizes the seizure of any documents relating to any business transactions of either the appellant or the three separate corporations for the previous five years. This item is particularly definitive, and we have upheld similar warrants. United States v....

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