U.S. v. Lewis

• Decision Date: 29 June 1984
• Docket Number: No. 83-1947,83-1947
• Citation: 738 F.2d 916
• Parties: UNITED STATES of America, Appellee, v. James W. LEWIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 916

738 F.2d 916

UNITED STATES of America, Appellee, v. James W. LEWIS, Appellant.

No. 83-1947.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 26, 1984.

Decided June 29, 1984.

John T. Maughmer, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for appellant.

Robert G. Ulrich, U.S. Atty., Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before McMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

James W. Lewis was convicted on six counts of mail fraud for devising and implementing a fraudulent credit card scheme. On appeal Lewis argues that the district court ¹ should have held that the warrantless opening of a mailbox bearing the name "David Woods" tainted all subsequently obtained search warrants, rendering all evidence produced by those warrants inadmissible. He also contends that the first search warrant obtained was not based upon probable cause because the affidavit contained insufficient information upon which to gauge the credibility or reliability of the informant. Furthermore, he contends that the district court erred in denying a motion to dismiss the indictment due to improper and prejudicial publicity that denied him a fair trial by an impartial jury. Finally, he argues that he was denied legal research facilities adequate to enable him to aid in the preparation and presentation of his defense. We affirm the convictions.

John E. Ryan reported to the police that his VISA credit card was being used fraudulently. The police discovered that some of the merchandise being purchased with this credit card was delivered to a mailbox at 8342 Swartz Road, Kansas City, Kansas. Detective William C. Moore of the Kansas City, Missouri Police Department drove there and found a mailbox mounted in a two-gallon can filled with concrete, lying on the ground in a ditch, and in a state of disrepair. The mailbox was in a rural area set among a row of similar mailboxes. It had the name "David Woods" written on its side. No one in the neighborhood knew of a David Woods or an 8342 Swartz Road residence, and further police investigation revealed no such person or residence.

Detective Moore then peered into the box to attempt to determine when mail was being picked up. On October 29, 1981, he opened the mailbox and found a Jackson County property assessment bill addressed to David E. Woods. He took the tax bill to his sergeant, who opened it, inspected the contents, resealed the envelope, and had Detective Moore replace it in the mailbox. Detective Moore used the identification number listed on the tax bill to learn from the Jackson County Recorder's Office that the property in question had been sold to David E. Woods by Record S. and Helen Rowland. When Moore interviewed them, the Rowlands denied that they had sold the property to anyone. When questioned as to who would have information about the property, the Rowlands mentioned the name of James W. Lewis, who had prepared their tax returns for several years.

Police surveillance on the David Woods mailbox commenced on November 9. On November 11, Lewis was seen taking mail from the mailbox, as well as physically picking up the mailbox and placing it in his car. The police tracked Lewis to his residence at 5723 Troost, Kansas City, Missouri, where they observed him repairing the mailbox.

A few days later a postal inspector asked Mrs. Joyce Williams, former wife of John Ryan, to pay a debt owed by Ryan to Lewis and to attempt to determine if there were typewriters in the Lewis office when she did so. Because she had only $22.00 on her person, the inspector gave her an additional $50.00 to pay the debt. While at the Lewis office Mrs. Williams saw two typewriters.

A federal search warrant was obtained with respect to the typewriters and on December 4, postal inspectors, detectives, and police officers went to the 5723 Troost address. They secured the premises, performed an initial sweep and took photographs. Numerous items relating to the credit card fraud investigation were in plain view. A second search warrant was obtained and another search conducted later that day. Four additional search warrants were then obtained and executed.

At the time the indictments in this case were returned, Lewis was the subject of a nationwide manhunt not only in connection with the deaths resulting from cyanide-laced Extra Strength Tylenol capsules but also with respect to an extortion letter sent to Johnson & Johnson, its manufacturers. Between September 30, 1982, and May 23, 1983, the date of Lewis's trial, numerous television and radio broadcasts and approximately 135 Kansas City newspaper stories and articles mentioned or discussed Lewis and the Tylenol investigation.

Lewis moved to suppress the evidence concerning the warrantless opening of the David Woods mailbox, additionally claiming that all subsequent search warrants, and therefore all evidence at the trial, were fruit of this allegedly illegal search. The district court conducted a hearing and granted the motion to suppress with respect to all testimony concerning the search of the mailbox, the tax bill addressed to David E. Woods which was seized and opened, and all testimony relating thereto. The court determined, however, that the suppressed information was minor and cumulative at best, and that the first search warrant could properly have been issued in the absence of such information. Thus, the court concluded that the subsequent warrants did not stem from any illegality. The court further ruled that the reliability of Mrs. Williams as an informant had been sufficiently shown, finding that she was simply an ordinary citizen and a victim of the fraudulent scheme. Her active cooperation with law enforcement officials, even though the fifty dollars was not reimbursed, did not require her reliability to be tested independently. Moreover, her information was corroborated by other facts in the affidavit.

I.

The government argues that Lewis has no standing to raise the fourth amendment issues arising from the search of the David Woods mailbox. We recognize that his possession of the mailbox and of its mail does not confer upon Lewis "automatic standing" to raise a fourth amendment challenge. United States v. Salvucci, 448 U.S. 83, 92-93, 100 S.Ct. 2547, 2553-2554, 65 L.Ed.2d 619 (1980). Rather, fourth amendment rights are personal in nature, Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978), and the critical question is whether governmental officials violated any legitimate expectation of privacy held by Lewis. Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980); Salvucci, 448 U.S. at 92, 100 S.Ct. at 2553; United States v. Weatherd, 699 F.2d 959, 961 (8th Cir.1983); see United States v. Reed, 733 F.2d 492 at 500-501 (8th Cir.1984).

The district court did not squarely face this question. Because the district attorney stated at the suppression hearing that the government did not intend to introduce evidence of the mailbox search or letter contents at the trial, the district court simply granted that aspect of the motion to suppress. We believe that we need not address the standing issue because the validity of the challenged search warrants may be decided on other grounds. ² We simply assume without deciding that Lewis has standing to raise the fourth amendment questions regarding the mailbox search.

II.

In reviewing the district court's determinations made in the context of a motion to suppress, we apply the clearly erroneous standard. United States v. Ross, 713 F.2d 389, 392 (8th Cir.1983); United States v. Childress, 721 F.2d 1148, 1150 (8th Cir.1982). Under this standard we must affirm the decision unless it lacks the support of substantial evidence, it evolves from an erroneous view of the applicable law, or upon considering the entire record we are left with a definite and firm conviction that a mistake has been made. Ross, 713 F.2d at 392.

A.

Lewis argues that the court erred in denying that portion of the motion to suppress which sought to exclude all materials seized as a result of the six search warrants. He claims that the information obtained in the opening of the mailbox was essential to the issuance of the first warrant and that the other five warrants were dependent upon the first. Accordingly, he contends, the fruits of all five further search warrants were tainted and inadmissible. He argues that there was no showing of sources of information independent of the illegality.

It is beyond question that evidence obtained pursuant to an illegal search is the "fruit of the poisonous tree" and cannot be used against an individual. Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). We have not found it necessary to decide, but assuming that the opening of the David Woods mailbox and of the tax bill within constituted an illegal search, we think the record before us nevertheless establishes that the evidence stemming from all six warrants had been procured by independent means "sufficiently distinguishable to be purged of the primary taint." Brown, 422 U.S. at 599, 95 S.Ct. at 2259; Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417. Evidence from an independent source will not be excluded, United States v. Crews, 445 U.S. 463, 475, 100 S.Ct. 1244, 1252, 63 L.Ed.2d 537 (1980); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920); United States v. Stover, 565 F.2d 1010, 1013 (8th Cir.1977), if the government shows by a preponderance of the evidence that it is untainted, United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974); Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176 (1969).

We believe such a...