U.S. v. Ellison

• Citation: 793 F.2d 942
• Decision Date: 17 June 1986
• Docket Number: 85-2095,Nos. 85-2094,s. 85-2094
• Parties: 20 Fed. R. Evid. Serv. 1310 UNITED STATES of America, Appellee, v. James D. ELLISON, Appellant. (Two Cases)
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 942

793 F.2d 942

20 Fed. R. Evid. Serv. 1310

UNITED STATES of America, Appellee, v. James D. ELLISON, Appellant. (Two Cases)

Nos. 85-2094, 85-2095.

United States Court of Appeals Eighth Circuit.

Submitted March 10, 1986.

Decided June 17, 1986.

Neal Kirkpatrick, Ft. Smith, Ark., and James Haaser, Barling, Ark., for appellant.

Sidney M. Glaser, Washington, D.C., for appellee.

Before McMILLIAN and BOWMAN, Circuit Judges, and HANSON, ^* Senior District Judge.

BOWMAN, Circuit Judge.

James D. Ellison appeals his conviction of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c), by participating in the affairs of an enterprise through a pattern of racketeering activity, and of violating 18 U.S.C. Sec. 1952(a)(3) through interstate travel to promote arson. Ellison also entered a conditional plea of guilty to charges of conspiracy to possess unregistered automatic weapons, destructive devices, and silencers in violation of 26 U.S.C. Sec. 5861 and 18 U.S.C. Sec. 371, and of possessing unregistered firearms in violation of 26 U.S.C. Secs. 5861(d) & 5871. The guilty plea is conditional in that Ellison specifically preserved his right to review on appeal the District Court's ¹ denial of his motion to suppress evidence. We affirm.

I.

Ellison is the founder and leader of a group dedicated to securing the supremacy of white Christians by promoting and engaging in defensive activities such as survivalism and paramilitary training, and in offensive activities intended to cause the downfall of the United States government. The group, variously known as the Christian Brothers Cedar, the Zarapeth-Horeb Church, and the Covenant, the Sword, and the Arm of the Lord (CSA), occupied a 224-acre farm or compound in north central Arkansas, abutting the Missouri state line. Ellison established the refuge in the mid-1970's as a religious retreat. In 1978, Ellison and the governing council of elders reoriented the group's activities to prepare for an envisioned downfall of the government and an accompanying civil war.

CSA came to the attention of agents of the Federal Bureau of Investigation and of the Bureau of Alcohol, Tobacco, and Firearms circa 1980. The agents began investigating CSA in 1983 and intensified their investigation in 1984, interviewing former CSA members who had lived on the compound. Through these informants, the agents learned that CSA was stockpiling military-type guns, fabricating silencers and grenades, converting semi-automatic weapons to automatic weapons, engaging in paramilitary training, and burying land mines around the compound perimeter. The agents also learned that CSA was involved in such activities as arson (burning Ellison's sister's house so she could collect the insurance proceeds, partially burning a Springfield, Missouri church, the congregation of which allegedly consisted of homosexuals, and partially burning a Jewish community center in Indiana), attempting to blow-up a natural gas pipeline, and theft. These activities were intended to produce operating funds, to plunder the property of certain "unacceptable" groups, and to hasten the collapse of the government.

The investigation of CSA culminated in April 1985 in an application for a warrant to search the compound for illegal firearms, explosives, stolen jewelry and stolen automobiles, equipment to make silencers and to convert semi-automatic weapons to automatic status, and records relating to the purchase or sale of firearms and to the identity of fugitives living in the compound. The magistrate issued the warrant and several days later 250 to 300 law enforcement agents arrived at the compound to execute both the search warrant and a warrant to arrest Ellison for firearms violations. The inhabitants initially resisted entry, but after three days Ellison and two federal fugitives agreed to surrender. The agents then spent several days searching the compound. Two days later, a federal grand jury indicted Ellison for racketeering activities and interstate travel to promote arson, and shortly thereafter the grand jury indicted him on the firearms-related charges. As mentioned above, he pled guilty to the charges in the second indictment. Trial by jury resulted in his conviction on the charges in the first indictment.

Appealing his conviction and the District Court's denial of his motions to suppress evidence, which contributed to his pleading guilty to the charges in the second indictment, Ellison raises three issues. First, he argues that the District Court erred by denying his motions to suppress evidence seized during the search of the CSA compound. Second, he asserts that the District Court erred by not requiring the government to accept his stipulation that CSA constituted an enterprise for RICO purposes. Third, he contends that the District Court erred in denying his motion for acquittal or for a new trial.

II.

Ellison first argues that the search of the CSA compound was unlawful and therefore that the District Court should have suppressed the evidence seized during that search. In particular, Ellison contends that probable cause to issue the warrant did not exist because the affiant did not provide the magistrate indicia of the seven informants' reliability or credibility. In addition, he asserts that the information in the affidavit was so old as to be stale and unreliable. Ellison alternatively asserts that even if probable cause did exist, the warrant was fatally defective because it authorized a general search by failing to describe locations or particular items of contraband with particularity. We find these contentions meritless.

Under Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), we are to take a totality-of-the-circumstances approach to the question of whether probable cause existed to believe that incriminating evidence was located in a particular place at the time a warrant was issued. Considerable deference is owed to a magistrate's determination of probable cause. Id. at 236, 103 S.Ct. at 2331. Our duty is "simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2332 (citation omitted); United States v. Arenal, 768 F.2d 263, 266 (8th Cir.1985).

Ellison's argument concerning the affidavit's lack of information regarding the informants' reliability and credibility fails both legally and factually. As we said in United States v. Ross, 713 F.2d 389, 393 (8th Cir.1983), an informant's "veracity," "reliability," and "basis of knowledge" are important, but "should be understood as 'relevant considerations in the totality of the circumstances analysis,' not as separate requirements for a finding of probable cause." In the present case, although the affiant did not say that the informants were reliable and credible, the affidavit stated that they all had first-hand knowledge of the matters and objects described in the affidavit by their having lived, often for many years, in the compound. Further, by reading the statements in the affidavit, the magistrate could confirm the reliability of the informants' information in part by noting the consistency of their statements, particularly since they were interviewed separately on different dates and by inference at different places. In addition, the affidavit indicated that surveillance by law enforcement officers had confirmed some of the informants' information concerning the layout of buildings within the compound.

At the suppression hearings, the affiant acknowledged that he had not told the magistrate that several of the seven informants were in jail or that several had received financial consideration from the government. The general rule is that an affidavit need only show facts adequate to support a finding of probable cause. The omission of facts rises to the level of misrepresentation only if the omitted facts "cast doubt on the existence of probable cause." United States v. Dennis, 625 F.2d 782, 791 (8th Cir.1980). Although as a matter of good practice the affiant should have informed the magistrate of the incarceration of and payments for the benefit of some of the informants, we do not believe that in this case the omission of these facts undermined the informants' information or cast doubt on the existence of probable cause under the standard of Illinois v. Gates.

Ellison's argument that probable cause could not have existed because the informants' information was so old as to be stale also fails. Delay in seeking a search warrant may invalidate the warrant because probable cause must exist at the time the warrant is issued, not at an earlier time. United States v. Steeves, 525 F.2d 33, 37-38 (8th Cir.1975). The lapse of time, however, is not necessarily the controlling consideration. Other factors include the nature of the criminal activity and the type of property sought, id. at 38, considered in the light of common sense. Dennis, 625 F.2d at 792. Applying these factors, we note that one of the informants had been in the compound and had seen military-type weapons there as recently as one month before the agents sought the search warrant. The other informants had lived in the compound at various times extending back as far as 1976, although all the informants had lived in the compound in the early to mid-1980's. In addition, the criminal activity--illegal possession of firearms, explosives, and grenades, as well as illegal actions like arson and theft--was continuous since 1978. Considering CSA's paramilitary orientation and its desire to foster the collapse of the government, it could be presumed that CSA would retain firearms, explosives, and related items over a long period of time. In April 1985 there was every reason for the federal agents to believe that CSA had not, in the brief space of one month since an informant most recently had been inside the compound, renounced its violent...