U.S. v. Orr

• Citation: 864 F.2d 1505
• Decision Date: 29 December 1988
• Docket Number: No. 86-2772,86-2772
• Parties: -518, 89-1 USTC P 9220, 27 Fed. R. Evid. Serv. 385 UNITED STATES of America, Plaintiff-Appellee, v. James Darriel ORR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1505

864 F.2d 1505

63 A.F.T.R.2d 89-518, 89-1 USTC P 9220,

27 Fed. R. Evid. Serv. 385

UNITED STATES of America, Plaintiff-Appellee, v. James Darriel ORR, Defendant-Appellant.

No. 86-2772.

United States Court of Appeals, Tenth Circuit.

Dec. 29, 1988.

Paul D. Brunton and Thomas E. Salisbury, Tulsa, Okl., for defendant-appellant.

Layn R. Phillips, U.S. Atty., and Kenneth P. Snoke, Asst. U.S. Atty., Tulsa, Okl., for plaintiff-appellee.

Before McKAY, LOGAN and MOORE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant James Darriel Orr appeals his conviction by a jury for conspiracy to file false income tax returns, in violation of 18 U.S.C. Sec. 286. Orr alleges the following grounds for reversal of his conviction: (1) the district court should have suppressed the evidence obtained by a search of his apartment because the warrant and supporting affidavit were constitutionally defective; (2) the evidence was insufficient to support the conviction; and (3) the district court erred in admitting "other acts" evidence under Fed.R.Evid. 404. We affirm the conviction. ¹

In early 1986, the Internal Revenue Service (IRS) began investigating several tax returns filed in the first three months of that year that had reported similar employers and similar return addresses in Tulsa, Oklahoma. Agents discovered that Robert Swatt, using an alias, had rented three mailboxes, one of which was listed as the return address on each of the suspect returns. To find out who collected the mail from the boxes, the agents placed a refund check into one. Orr's brother-in-law, using a false name, collected that check; agents followed him to the apartment Orr and his wife occupied. Orr was the manager of the apartments, and his apartment served as the manager's office.

Several days later the IRS agents placed refund checks into another of the suspect mailboxes, and again waited for someone to collect the mail. This time Swatt collected the checks, and like the brother-in-law, went to Orr's apartment. When he arrived, two agents were inside the apartment, posing as potential renters and talking to Orr. Swatt gave Orr's wife a bundle of mail, and the agents noticed within the stack what appeared to be at least one brown envelope of the type in which tax refund checks are mailed. After the agents left the apartment complex, they obtained a search warrant for the apartment, apparently averring these facts in the supporting affidavit. The affidavit stated that agents observed Swatt "turn the tax refund check and envelope over to wife of the apartment manager [Orr] inside apartment 41." ² Later that day they conducted the search, which yielded items indicating a scheme to defraud by filing false income tax returns.

I

First, Orr argues that the IRS agents knowingly or recklessly included falsehoods in the affidavit submitted to support the issuance of the search warrant and, therefore, that the fruits of the subsequent search must be suppressed. See Franks v. Delaware, 438 U.S. 154, 155-56, 171, 98 S.Ct. 2674, 2676-77, 2684 (1978). In particular, Orr focuses on the agents' averrment that they saw Swatt hand Orr's wife "the tax refund check and envelope," even though the agents later testified that at the time they did not know with certainty that the brown envelopes handed Orr's wife were in fact tax refund envelopes or that they still contained refund checks.

When a defendant makes a substantial preliminary showing that intentionally or recklessly false statements are included in an affidavit supporting a search warrant and that the affidavit without the false statements is insufficient to support a finding of probable cause, the defendant is entitled to a hearing on the matter. See id. at 171, 98 S.Ct. at 2684. At the hearing, he must establish knowing or reckless falsity by a preponderance of the evidence before he may obtain suppression of the evidence obtained from the search. Id. In the instant case, the trial court did hold a hearing based on Orr's Franks allegation. The court found that Orr had not established the existence of knowing or reckless falsehoods in the affidavit by a preponderance of the evidence. I R.Doc. 27 at 6. Orr points to nothing indicating that the trial court's findings were incorrect. An affiant's negligence or innocent mistake resulting in false statements in the affidavit, which is at most what Orr has shown, is not enough to satisfy his burden. Franks, 438 U.S. at 171, 98 S.Ct. at 2684; United States v. Page, 808 F.2d 723, 729 (10th Cir.1987),cert. denied, --- U.S. ----, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1988); United States v. Carlson, 697 F.2d 231, 238 (8th Cir.1983). ³

Next, Orr contends that even if his Franks claim fails, the agents' affidavit did not support a finding of probable cause to search his apartment. We must review the magistrate's finding of probable cause to issue the search warrant with "great deference." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983). The Fourth Amendment probable cause standard deals with probabilities and common sense conclusions, not certainties. Id. at 231, 103 S.Ct. at 2328. A "fair probability" or a "substantial basis" for believing evidence of a crime will be found at a certain location constitutes probable cause. Id. at 236, 238, 103 S.Ct. at 2331, 2332. Here, the magistrate logically could have concluded that illegally obtained tax refund checks or other evidence pertaining to the scheme would be found in Orr's apartment, and, thus, he properly concluded that the affidavit established probable cause to search it. ⁴

Finally, Orr asserts that the evidence obtained in the search must be suppressed because the agents who searched the apartment conducted an unconstitutional "general search." See United States v. Medlin, 842 F.2d 1194 (10th Cir.1988). Orr failed to raise this general search argument in the district court, and "[i]ssues not raised in the district court will not be considered for the first time on appeal when, as here, 'there is no showing of an impediment to the appellant that precluded his raising the issue.' " United States v. Lotspeich, 796 F.2d 1268, 1271 (10th Cir.1986) (quoting United States v. Mitchell, 783 F.2d 971, 995 (10th Cir.1986)). On appeal we will consider only the specific ground of the evidentiary objection in the trial court, unless the ground not raised constitutes "plain error resulting in manifest injustice." United States v. Taylor, 800 F.2d 1012, 1017 (10th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987); Fed.R.Crim.P. 52(b).

In the instant case, nothing prevented Orr from raising his general search argument in the trial court, and in fact a codefendant appears to have raised the argument with respect to the same search. The court denied this "conclusory allegation," finding that the codefendant had "produced no substantiating evidence at the hearing held May 8, 1986." I R.Doc. 27 at 7. Orr has not even designated the search warrant as a part of the appellate record, and we cannot discern what, if any, unauthorized items were obtained in the search. He shows no "plain error." See United States v. Young, 470 U.S. 1, 15, 16, 105 S.Ct. 1038, 1046, 1047, 84 L.Ed.2d 1 (1985) (appeals court should find plain error only if it is " 'particularly egregious' " and would "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice") (citations omitted); United States v. Mitchell, 783 F.2d 971, 977-78 (10th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 208, 93 L.Ed.2d 138 (1986).

The trial court correctly refused to suppress the evidence obtained by the IRS agents' search of Orr's apartment pursuant to the search warrant.

II

We also reject Orr's argument that the government presented insufficient evidence to support a conviction on the conspiracy count. ⁵ Of course, we must "view the evidence in the light most favorable to the government and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt." United States v. White, 673 F.2d 299, 301 (10th Cir.1982); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (question is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt") (emphasis in original).

Both the government and Orr seem to agree that Robert Swatt was the primary actor in the present saga: he rented the mailboxes to which the fraudulently obtained checks were sent, he picked up some of the checks, and he completed at least some of the false returns. The testimony also showed that Swatt spent considerable time at Orr's apartment and was Orr's friend. This evidence alone is insufficient to support Orr's conviction, of course, because mere association with a criminal does not create a conspiracy. See United States v. Butler, 494 F.2d 1246, 1252 (10th Cir.1974).

Nevertheless, the record contains substantial evidence tying Orr to the primary element of conspiracy--"an agreement to cooperate or ... actual cooperation." See United States v. Lopez, 576 F.2d 840, 844 (10th Cir.1978). Testimony showed that IRS agents found, in Orr's bedroom, two tax refund checks, III R. 222, applications and receipts for mailbox rentals, IV R. 353-54, and other information connected with false income tax returns, IV R. 379-81, V R. 632-35; that agents saw Swatt, while in Orr's apartment, hand envelopes of the type in which refund checks are mailed to Orr's wife, III R. 232, IV R. 391-93; that when agents came to search Orr's apartment they found Orr and his wife there, with an apartment vacancy report--containing names of former renters that appeared on false tax returns--lying on the dining room table at which Swatt was seated, III R. 239, V R. 630-31; that in late 1985 Orr contacted Virginia Broaddus about assisting him in a tax refund scheme, V R. 552-54; and that during...