U.S. v. Bithoney
| Decision Date | 24 September 1980 |
| Docket Number | No. 79-1362,79-1362 |
| Citation | 631 F.2d 1 |
| Parties | 6 Fed. R. Evid. Serv. 1281 UNITED STATES of America, Appellee, v. Samuel A. BITHONEY, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
John P. White, Jr., Boston, Mass., with whom Michael H. Riley and White, Inker, Aronson, Connelly & Norton, P. C., Boston, Mass., were on brief, for defendant, appellant.
Amos Hugh Scott, Asst. U.S. Atty. Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and CAFFREY, * District Judge.
Samuel Bithoney, a Boston attorney, appeals his conviction on two counts of conspiracy under 18 U.S.C. § 371. The first count, premised on Bithoney's alleged involvement in a sham marriage scheme and subsequent cover-up attempt, charged Bithoney and co-defendant Lee Christo with conspiring to defraud the Immigration and Naturalization Service and with conspiring to influence a prospective grand jury witness. The Count II conspiracy centered around Bithoney's alleged participation, with four others, in a scheme to obtain Social Security cards fraudulently for illegal aliens. Upon Bithoney's motion, separate trials were held on each of the conspiracy counts, with Count II being tried first. Bithoney was found guilty on both counts, receiving a sentence of one year and one day on the first count and a concurrent sentence of two years on Count II.
We address Bithoney's varied contentions in the context of each separate count of the indictment, turning first to those raised under the earlier tried second count. Bithoney challenges as error the district court's denial of his motion to suppress various documents seized, pursuant to a warrant, during a search of his Boston law office. Bithoney contends the warrant was defective. It provided for the seizure of the following items from his office:
We think the warrant was adequate, comporting with standards discussed in recent opinions of this circuit. See United States v. Brien, 617 F.2d 299 (1st Cir. 1980); United States v. Roche, 614 F.2d 6 (1st Cir. 1980); United States v. Abrams, 615 F.2d 541 (1st Cir. 1980); In re Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1980). It undertook to narrow and identify the documents subject to seizure, breaking them down into specific categories. 1 This practice minimized the likelihood of random excursions by the executing officers. Compare Lafayette Academy, supra, 610 F.2d at 4 n.4. The warrant also restricted seizable materials to documents relating to 17 named individuals-a further significant limitation on its scope, which reduced the likelihood of a general rummaging expedition. Compare United States v. Abrams, supra, 615 F.2d at 550 (Campbell, J., concurring). And finally, the warrant identified with some particularity the object of the conspiracy under investigation. Compare Lafayette Academy, supra, 610 F.2d 1; United States v. Roche, supra, 614 F.2d 6.
Bithoney, indeed, makes no allegation that the warrant is not sufficiently particular in its descriptive language. Rather, he urges only that the warrant's final qualifying phrase-"all of which said documents constitute evidence, fruits and instrumentalities of the crime of conspiracy to defraud the United States Social Security Administration . . ."-is fatally defective. Basically, Bithoney's argument is that the warrant does not simply authorize the seizure of documentary evidence of the specified crime, but rather goes much further by indicating that all documents relating to the named individuals are, in fact, evidence of the conspiracy alleged, and hence subject to seizure. Viewed in this light, the warrant, Bithoney argues, exceeds the scope of the underlying probable cause, as not all documents located in his law office relating to the named individuals could reasonably be assumed to be connected with the conspiracy charged. See United States v. Abrams, supra, 615 F.2d at 548-49 (Campbell, J., concurring).
Bithoney's proposed reading of the challenged warrant language is "hypertechnical." Cf. United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965). The phrase beginning "all of which said documents," though perhaps not drafted "with the niceties required in fields like conveyancing and estate planning," id. at 550, is most reasonably read as directing the officers to seize only those specified documents relating to the named individuals which are evidence of the described conspiracy. If the warrant was meant, as Bithoney urges, simply to direct the officers to seize any and all items relating to the 17 named individuals, it would have been unnecessary to restrict the scope of the search by specifying, as the warrant actually did, the various categories of seizable documents and the nature of the conspiracy involved. We think the warrant adequately focused the search and seizure upon just those documents likely to evidence the described conspiracy. The warrant adequately "circumscrib(ed) the discretion of the executing officers" and "inform(ed) the person subject to the search and seizure what the officers (were) entitled to take." Lafayette Academy, supra, 610 F.2d at 5. There was no fourth amendment violation.
Bithoney contends that under the standards announced by this court in United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), there was insufficient evidence of his participation in the alleged conspiracy to support the admission of various coconspirator statements against him. The district court, on the sixth day of the 14 day trial of the second count, granted the government's request for admission, determining that both the existence of the conspiracy and Bithoney's participation therein had been shown, as required by Petrozziello, by a preponderance of the evidence. The court, in support of its ruling noted: Bithoney's participation in a December 4, 1979 meeting with his son Albert and a government informant at which time Albert passed to the informant social security applications for fraudulent processing as well as cash payments as remuneration for such processing; a November 16, 1979 telephone conversation between Bithoney and the informant in which Bithoney, though ultimately referring the caller to his son, indicated his familiarity with the caller and the scheme, and in no way disassociated himself with the scheme; the fact that nearly all the key events and transactions relating to the scheme took place in Bithoney's law office, where Bithoney, the sole attorney, worked with his two sons; the fact of the family relationship existing between Bithoney and his son Albert, the latter being, in the court's words, "the banker" for the scheme.
We have reviewed the relevant portions of the record and conclude that the district court's finding, by a preponderance, of the existence of a conspiracy and Bithoney's participation therein, are amply supported. Evidence introduced subsequent to the court's Petrozziello ruling only further...
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