727 F.2d 786 (9th Cir. 1983), 80-1577, United States v. Rubio

Docket Nº:80-1577, 80-1584, 80-1586, 80-1587, 80-1592 and 80-1631.
Citation:727 F.2d 786
Party Name:Serv. 1362 UNITED STATES of America, Plaintiff-Appellee, v. Manuel Frank RUBIO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ronald Harrison ELLEDGE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Duane SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John PALOMAR, D
Case Date:April 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 786

727 F.2d 786 (9th Cir. 1983)

Serv. 1362

UNITED STATES of America, Plaintiff-Appellee,

v.

Manuel Frank RUBIO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald Harrison ELLEDGE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald Duane SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

John PALOMAR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Alan David PASSARO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Bert Samuel STEFANSON, Defendant-Appellant.

Nos. 80-1577, 80-1584, 80-1586, 80-1587, 80-1592 and 80-1631.

United States Court of Appeals, Ninth Circuit

April 14, 1983

Argued and Submitted July 13, 1981.

Order Dec. 20, 1983.

Modified Feb. 29, 1984.

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[Copyrighted Material Omitted]

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Sanford Svetcov, Robert Mueller, III, Asst. U.S. Attys., San Francisco, Cal., for the U.S.

Richard B. Mazer, San Francisco, Cal., for Rubio.

Arlene West, Oakland, Cal., for Elledge.

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Du Bois & Hove, Richard E. Hove, Oakland, Cal., for Smith.

Judd Iversen, San Francisco, Cal., for Palomar.

Robert Carey, Palo Alto, Cal., for Passaro.

Ray Archuleta, San Francisco, Cal., for Stefanson.

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

Before ANDERSON and POOLE, Circuit Judges, and TAKASUGI, [*] District Judge.

J. BLAINE ANDERSON, Circuit Judge:

ORDER

A majority of the panel in the above case has voted to deny the petition for rehearing and to reject the en banc suggestion. Judge Poole would grant rehearing and accept the en banc suggestion.

The opinion and dissent filed herein on April 14, 1983 are withdrawn and the attached Opinion on Denial of Petition for Rehearing and the Dissent are substituted therefor.

The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

OPINION ON DENIAL OF PETITION FOR REHEARING

Rubio appeals his conviction of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. Secs. 1961-68. Elledge, Smith, Palomar, Passaro, and Stefanson appeal their convictions of various firearms and narcotics violations. The six cases were consolidated for trial and appeal.

The essential facts are not in dispute. On June 13, 1979, a grand jury returned a three-count indictment charging some thirty-three defendants with various violations of the RICO statute. All six defendants in the present case were charged with Count I of conspiring to participate in the conduct of the affairs of the Hell's Angels Motorcycle Club (hereinafter "Club"), an enterprise, through a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(d). Count II charged Elledge, Passaro, Rubio, and Smith with having actually participated in the conduct of the affairs of the Club through a pattern of racketeering activity as proscribed by 18 U.S.C. Sec. 1962(c). Count III charged Rubio and Passaro with having conspired to use or invest a part of the income or proceeds of income derived from a pattern of racketeering activity in the operation of the San Rafael Auto Body & Repair Shop, an enterprise, in violation of 18 U.S.C. Sec. 1962(d) and (a).

On the evening of June 13, 1979, a task force of FBI, ATF, and DEA agents executed a carefully prepared plan for the arrest of all unincarcerated defendants named in the indictment and for the search of the residences of all the indicted defendants. The arrests and searches were executed pursuant to three warrants issued earlier that day by a federal magistrate. Where relevant, Prescott 1 search warrants and arrest warrants were issued. The other search warrants, hereinafter referred to as "indicia warrants," authorized the search for, and seizure of, "indicia of membership in or association with the Hell's Angels." A separate, but similar, affidavit was submitted in support of each indicia warrant.

In addition to evidence of membership or association, the execution of the indicia warrants resulted in the seizure of substantial amounts of evidence of criminal activity not covered by the indictment. Those seizures

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were purportedly made in reliance on the plain view doctrine. On July 25, 1979, a superseding indictment was filed charging additional criminal violations supported by the evidence so discovered. With the exception of Rubio, all defendants were convicted only on charges added by the superseding indictment. Rubio was convicted under the original indictment of conspiracy to invest funds derived from a pattern of racketeering activity in an enterprise, the San Rafael Auto Body & Repair Shop. Thus, while the justification for the indicia warrants rested upon the RICO charges in Counts I and II of the original indictment, the warrants' execution supplied the evidence to support the convictions of all defendants, except Rubio, on different charges. Similarly, though Rubio was convicted on a charge for which he was initially indicted, much of the evidence introduced on that charge was obtained through the indicia warrant.

All defendants except Smith join in the argument that evidence obtained in execution of the indicia warrants should have been suppressed because the warrants were invalid. Because we hold the warrants lacked probable cause, 2 we reverse the convictions of Rubio, Elledge, Palomar, Passaro, and Stefanson. We remand those cases to the trial court for possible reprosecution, however, because we are not advised whether sufficient evidence to support the convictions may exist apart from the tainted evidence. Because the Smith search was performed pursuant to a valid consent, we affirm Smith's conviction.

I. Freedom of Association

Defendants initially contend that the search warrants, drawn as they were to authorize the search and seizure of "indicia of membership in or association with the Hell's Angels Motorcycle Club," were facially invalid as violative of the Club members' First Amendment guarantee of free association. The thrust of defendants' argument is that by authorizing the search for items containing the identities of Hell's Angels associates other than those indicted, the warrants violated the right to "privacy in one's associations" recognized in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), and Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960).

We agree with defendants that the First Amendment protects their right to associate with one another and with the Hell's Angels Motorcycle Club. We strongly disagree with any inference that criminal investigation is somehow prohibited when it interferes with such First Amendment interests. When activity protected by the First Amendment becomes the subject of a criminal investigation, the protections afforded by the Fourth Amendment come into play. As the Supreme Court said in upholding the search of a newspaper office in Zurcher v. Stanford Daily, 436 U.S. 547, 565, 98 S.Ct. 1970, 1981, 56 L.Ed.2d 525, 541-42 (1978):

"the ... cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search .... Properly administered, the preconditions for a warrant--probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness--should afford sufficient protection against the harms that are assertedly threatened ...."

Similar principles come into play in conspiracy cases, where agreement between the alleged conspirators must be proved. This court has held that items whose content is protected by the First Amendment may nevertheless be the proper subject of a search when those items tend to prove conspirators' associations with each other. United States v. Giese, 597 F.2d 1170, 1187 (9th Cir.) (on denial of rehearing en banc),

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cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).

Under 18 U.S.C. Sec. 1962(c), Congress has made association with an enterprise one element of the RICO offense. See United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246, 254 (1981). That element has withstood the attack that it unconstitutionally punishes associational status, the courts recognizing that RICO's "proscriptions are directed against conduct, not status." United States v. Martino, 648 F.2d 367, 380 (5th Cir.1981), cert. denied, 456 U.S. 943, 949, 102 S.Ct. 2006, 2007, 2020, 72 L.Ed.2d 465, 474 (1982) (quoting United States v. Elliott, 571 F.2d 880, 903 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)). Ofttimes, evidence of the associational element of RICO can be obtained only through a search of the suspect's property. It would be anomalous indeed if the associational element of RICO were to remain forever unsatisfied on the basis that an otherwise constitutional search warrant could never issue because it would violate the RICO suspect's First Amendment right to free association.

We recognize the potential for abuse that these indicia warrants can present. In this portion of the opinion, we conclude only that a narrowly drawn, and properly issued and executed warrant which authorizes the search for indicia of membership or association with a particular enterprise, does not violate the RICO suspect's right to freedom of association.

II. Probable Cause

Defendants challenge the issuance of the warrants as lacking probable cause. Specifically, defendants contend the warrants lack probable cause because no nexus was...

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