920 F.2d 1028 (D.C. Cir. 1990), 89-3130, U.S. v. Maxwell

Docket Nº:89-3130.
Citation:920 F.2d 1028
Party Name:UNITED STATES of America, Appellee, v. Carrye E. MAXWELL, Appellant.
Case Date:December 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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920 F.2d 1028 (D.C. Cir. 1990)

UNITED STATES of America, Appellee,


Carrye E. MAXWELL, Appellant.

No. 89-3130.

United States Court of Appeals, District of Columbia Circuit.

December 11, 1990

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       Argued Nov. 6, 1990.

       G. Godwin Oyewole, Alexandria, Va. (appointed by this Court), for appellant.

       John G. Horan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Roy W. McLeese, III, Washington, D.C., and Brian M. Murtagh, New York City, Asst. U.S. Attys., Dept. of Justice, were on the brief, for appellee.

       Before WALD, Chief Judge, D.H. GINSBURG and RANDOLPH, Circuit Judges.

       Opinion for the Court filed by Chief Judge WALD.

       WALD, Chief Judge:

       Following a trial by jury, appellant, Carrye E. Maxwell, was convicted on two counts of wire fraud in violation of 18 U.S.C. Sec. 1343 and three counts of false personation of an officer or employee of the United States in violation of 18 U.S.C. Sec. 912. Appellant makes the following arguments on appeal: (1) the district court erred in denying her pretrial motion to suppress evidence seized from her apartment pursuant to a search warrant that she alleges was overly broad; (2) there was insufficient evidence to support her convictions on the wire fraud counts; and (3) there was insufficient evidence to support her convictions for false personation. We reject all of these challenges and affirm appellant's convictions.


           The charges against appellant arose from a complex series of financial transactions she conducted during 1985 and 1986 from her apartment in Washington, D.C. The wire fraud charges were based on appellant's solicitation of loan applications from a number of persons and the subsequent transfer of funds by two interested borrowers into an account controlled by appellant. The government's evidence, uncontradicted by appellant, showed that appellant claimed that she could procure large loans from a group of offshore lenders and that she was a trustee of funds for these lenders. The evidence further showed that appellant represented to the potential borrowers that they would have to deposit certain funds into an escrow account as evidence that they intended to complete the loan applications and accept the loans, but that these funds would be fully refunded if the lenders failed to make the loans. Appellant's activities ultimately resulted in the wire transfer of funds into this account by two of the interested borrowers, James Whatley and Robert Capuano. The loans were never funded, and the monies deposited by Whatley and Capuano were never returned.

           The false personation counts were based on appellant's representations while offering bonds or large quantities of commodities for sale to three potential purchasers, Leo Hansen, Harold Gardner, and Charles Waggoner. The government's evidence, again uncontradicted by appellant, showed that appellant represented herself to these individuals as a "Special Consultant" to the United States Department of the Treasury ("Treasury Department") in connection with the U.S. Recycle Program, an enterprise appellant claimed to be operating under special authorization from the Treasury Department. She further claimed that she was authorized by the government to solicit loans in exchange for "special issue" Treasury Bonds and to sell government-owned and other commodities, with the pro

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    ceeds going to the government. The Treasury Department, in fact, had never retained appellant in any capacity and had no official connections with the U.S. Recycle Program.

           During the government's investigation of appellant's activities, a Secret Service agent applied for and received a warrant to search appellant's apartment. The search warrant was executed in late March of 1986, resulting in the seizure of a large quantity of appellant's business records and equipment. At a pretrial suppression hearing, the district court rejected appellant's contention that the search warrant was overbroad and refused to suppress the evidence. Material seized during the search was subsequently used against appellant during her trial.


    1. The Validity of the Search Warrant

             Appellant argues that the search warrant obtained by the federal agents for the search of her apartment was overbroad, amounting in effect to a general warrant, and that the resulting search thus violated her rights under the fourth amendment. The government responds that the warrant, as supplemented by material specifically incorporated into it and by an underlying affidavit, was sufficiently particularized to pass muster under judicial precedent and that, even if it was not, the good faith exception to the exclusionary rule precludes suppression of the evidence. Although we agree with appellant that the warrant was not sufficiently particularized to survive review, we believe the good faith exception does apply and that the evidence therefore should not be suppressed.

             The fourth amendment categorically prohibits the "general, exploratory rummaging [of] a person's belongings" by requiring "a 'particular description' of the things to be seized." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971). By limiting searches "to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987). When assessing whether a warrant is sufficiently particular, however, " '[w]e are concerned with the realities of administration of criminal justice. It is sufficient if the warrant signed by the judicial officer is particular enough if read with reasonable effort by the officer executing the warrant.' " United States v. Vaughn, 830 F.2d 1185, 1186 (D.C.Cir.1987) (quoting Moore v. United States, 461 F.2d 1236, 1238 (D.C.Cir.1972)).

             This circuit has held, along with most others, that in some circumstances a search warrant may be construed with reference to the affidavit supporting it for purposes of satisfying the particularity requirement. The affidavit may serve this function, however, only if " '(1) the affidavit accompanies the warrant, and in addition (2) the warrant uses "suitable words of reference" which incorporate the affidavit by reference.' " United States v. Vaughn, 830 F.2d at 1186 (quoting Moore v. United States, 461 F.2d at 1238). See also, e.g., United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982); United States v. Curry, 911 F.2d 72, 76-77 (8th Cir.1990); United States v. Roche, 614 F.2d 6, 8 (1st Cir.1980). The incorporation issue is crucial here because, for the reasons explained below, we believe that the warrant in this case was fatally overbroad if the supporting affidavit is unavailable to limit the warrant's scope.

             The warrant itself contained no description of the premises to be searched or the items to be seized, but did expressly incorporate a description of the premises that was attached to the application for the search warrant, as well as a one-paragraph description of the categories of items to be seized that also was attached to the application. 1 The warrant did not, however, expressly

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      incorporate the three-page affidavit prepared by the federal agent who applied for the warrant, which provided details of the wire fraud scheme appellant was suspected of perpetrating. The warrant did state, in preprinted language, that the agent presented an affidavit to the issuing magistrate and that the magistrate "was satisfied that the affidavit(s) ... establish probable cause" justifying issuance of a warrant, but there were no explicit words on the warrant indicating that the magistrate intended to incorporate the contents of the affidavit into the warrant and thereby limit its scope by reference to the affidavit, nor did either of the two attachments that were explicitly incorporated into the warrant make reference to the affidavit.

             Although there is little case law specifically addressing what suffices to incorporate an affidavit into a warrant by reference, we believe that something more is required than a boilerplate statement that the affidavit or affidavits presented to the magistrate constitute probable cause for issuing the warrant. See, e.g., United States v. Strand, 761 F.2d 449, 453-54 (8th Cir.1985) (affidavit was not incorporated where warrant stated only that affidavits were provided to issuing magistrate and that they provided probable cause); United States v. Curry, 911 F.2d at 77. 2 Courts have long recognized that there is "a fundamental distinction between the warrant and the underlying affidavit," Moore v. United States, 461 F.2d at 1238, 3 and the express incorporation rule recognizes this distinction by requiring the magistrate to manifest an explicit intention to incorporate an affidavit. We therefore reaffirm that, in order for an affidavit to be viewed as limiting the scope of a warrant, the warrant must not only attach the affidavit, but must also contain "suitable words of reference" evidencing the magistrate's explicit intention to incorporate the affidavit. Because there were no such "suitable words" in the warrant at issue here, the affidavit

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      detailing appellant's fraudulent activities is unavailable to limit the scope of the warrant. 4

             As indicated earlier, we believe that, without benefit of the limiting affidavit, the warrant in this case was fatally overbroad. The description of the items to be seized that was incorporated into the warrant authorized the seizure of the following categories of items:...

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