U.S. v. Burnette, 02-1814.

• Decision Date: 08 July 2004
• Docket Number: No. 02-1814.,02-1814.
• Parties: UNITED STATES of America, Appellee, v. Cheryl BURNETTE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

375 F.3d 10

UNITED STATES of America, Appellee, v. Cheryl BURNETTE, Defendant, Appellant.

No. 02-1814.

United States Court of Appeals, First Circuit.

Heard February 3, 2004.

Decided July 8, 2004.

COPYRIGHT MATERIAL OMITTED

Jane Elizabeth Lee, for appellant.

Donald A. Feith, with whom Thomas P. Colantuono, U.S. Attorney, and Peter E. Papps, Assistant U.S. Attorney, were on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

On September 15, 1999, a grand jury returned a two-count indictment against defendant Cheryl Burnette, charging her with wire fraud, 18 U.S.C. § 1343, and impersonating an employee of the United States, 18 U.S.C. § 912. Burnette was accused of convincing businesses to provide her with goods and services by falsely asserting that she was a government employee and that the government would pay the bills. Before trial, Burnette moved to suppress evidence obtained by law enforcement officials from her residence in Quechee, Vermont, as well as evidence obtained as a result of the warrantless search of the outside of her mail at three commercial mail receiving agencies. After an evidentiary hearing, the district court denied the motions. On October 5, 2001, following a four-day trial, a jury convicted Burnette of both counts in the indictment. Burnette challenges the suppression rulings on appeal. She also disputes the adequacy of the district court's jury instructions regarding reasonable doubt and, in a pro-se supplemental brief, raises a number of additional claims of error. After careful review, we affirm.

I.

We draw the facts from the suppression hearing as found by the district court and supplemented by the record of the hearing. In a series of fraudulent schemes carried out between 1992 and 1996, Cheryl Burnette stole goods and services from numerous businesses and individuals by falsely representing that she was an employee of the EPA and that the goods and services she received would be paid for by the agency. In particular, she created a sham business entity, United States Environmental (USE), which she frequently misrepresented as her employer and a government agency. Burnette obtained fictitious procurement numbers in order to set up government accounts at a number of businesses and obtain goods without payment. She rented apartments by explaining that the EPA would cover the rent, and then abandoned them several months later. She enrolled in Harvard University's Summer School after falsely promising that the government would pay the tuition. Also under the guise of carrying out government business, Burnette obtained a Washington, D.C., telephone number for the USE, with an answering machine that identified the organization as a government agency, and purchased mail receiving and forwarding services from three commercial mail receiving agencies (CMRAs), two in Washington, D.C., and one in Boston, Massachusetts.

In late 1996, the United States Environmental Protection Agency (EPA) assigned Cassandra Todd, a Special Agent for the EPA's Office of the Inspector General (EPA-OIG), to investigate allegations that a woman using different variations on the name Cheryl Appleton Burnette was pretending to be an employee of the EPA in order to obtain goods and services without paying for them. In the course of that investigation, Todd and other EPA agents inspected the outside of Burnette's incoming mail at the CMRAs from which Burnette was renting mail services. On two occasions, Todd applied for and received mail covers that allowed the United States Postal Service (USPS) to inspect the outside of Burnette's incoming mail prior to delivery.¹ On a third occasion, the USPS returned the mail cover application to the EPA for more information.

On September 23, 1999, EPA-OIG Special Agent Dennis Poltrino learned that United Parcel Service (UPS) had received a package addressed to Burnette that was scheduled to be delivered by a local taxi service. UPS delivered the package to the taxi service the next day, and Poltrino followed the taxi to Burnette's residence, located at 25 Alden Partridge Road, in Quechee, Vermont. The taxi left the package addressed to Burnette at the residence, and Poltrino learned from the neighbors that Burnette was living at that address.

On September 27, 1999, Poltrino and another EPA-OIG agent, Melissa Blaire, returned to the Vermont residence with a warrant for Burnette's arrest. When Burnette refused to open the door or leave the residence and subject herself to arrest, Blaire called the Hartford, Vermont Police Department for assistance, while Poltrino received instructions from the Assistant United States Attorney for the District of Vermont to forcibly enter the residence and arrest Burnette. Poltrino kicked in the door of the house and, with Blaire and two local police officers, stepped through the damaged door frame. Finding Burnette near the front of the house, Poltrino handcuffed her and placed her under arrest. He asked several times whether anyone else was in the house but Burnette refused to answer. Poltrino and one of the Hartford police officers noticed a man, later identified as Michael Tamulis, emerging from the bedroom. After handcuffing the man, Poltrino and Hartford Police Officer Allen Patterson performed a protective sweep of the residence and its basement to determine whether any other individuals were present in the house. During the sweep, Poltrino observed several items in plain view that he believed were connected to the crimes for which Burnette had been indicted, such as a fax machine, cell phone, laptop computer, and boxes from Harvard University.

After performing the protective sweep, Poltrino informed Burnette and Tamulis that they would be transported to the police station for questioning.² Poltrino testified at the suppression hearing that Burnette, who was still handcuffed, nodded toward an unopened black briefcase and a black leather bag that were on the floor about three feet away from her and asked to bring them with her to the police station. Burnette objected to this testimony. In her affidavit submitted in support of her motion to suppress, she alleged that she had asked Poltrino if she could bring a garment bag containing a change of clothes to the police station but that Poltrino had denied that request. At the station, the bags were inventoried, and the police retained two cards that identified Burnette as an employee of USE.

Poltrino remained at the residence after Burnette and Tamulis were taken to the police station in order to secure it until the front door could be repaired. While waiting, he conducted a second search of the residence, seeking to obtain more detailed information about some of the items he had noticed during his protective sweep, namely their brand names and serial numbers.

The next day, Poltrino applied for a search warrant to the United States District Court for the District of Vermont. Poltrino included in his warrant application information that he had obtained during his investigation from the initial protective sweep, the second search of Burnette's residence, and the inspection of Burnette's bags. The district court approved the warrant application, and Poltrino searched the residence a third time, seizing the items that he had listed in his warrant application.

Prior to trial, Burnette moved to suppress all evidence derived from the government's inspection of the outside of her mail at the CMRAs.³ She did not argue that the government's review of the outside of her mail violated the Fourth Amendment. Rather, Burnette claimed that the government's conduct violated USPS regulations governing mail covers, which she argued applied to mail that had been delivered to a CMRA. She claimed that the remedy for such a regulatory violation was suppression. Burnette also filed a motion to suppress evidence collected during the searches of Burnette's Vermont residence, claiming that all three searches violated the Fourth Amendment's proscription against unreasonable searches and seizures. She further argued that the police illegally searched her briefcase and black bag at the police station after her arrest.

On October 10, 2001, the district court denied both motions.⁴ It did not decide whether the EPA agents violated USPS regulations by inspecting the outside of Burnette's mail at the CMRAs. Instead, it held that because USPS mail cover regulations did not prescribe suppression as a permissible remedy, see 39 C.F.R. § 233.3, a violation of agency regulations would not, without more, justify the exclusion of otherwise relevant evidence. With respect to the searches of Burnette's Vermont residence, the district court held that the first search (the protective sweep) was reasonable. It agreed with Burnette that the second search was unlawful but concluded that the third search was saved by the doctrine of inevitable discovery. After conducting an evidentiary hearing on the issue, the district court found unpersuasive Burnette's assertion that the law enforcement officers brought her two bags to the police station over her objections. It credited Poltrino's testimony that Burnette asked to have both bags brought to the station and concluded that the inventory of those bags at the station was lawful.

Burnette subsequently was tried before a jury on one count of wire fraud, 18 U.S.C. § 1343, and one count of impersonating an employee of the United States, 18 U.S.C. § 912. The jury returned guilty verdicts on both counts. On May 21, 2002, the district court sentenced Burnette to 24 months imprisonment on each count to be served concurrently and three years of supervised release, with the special condition that she pay $49,588.86 in restitution, a special assessment of $200.00, and other special conditions. Judgment was entered on June 17, 2002, and this appeal followed.

II.

Ably represented by counsel, Burnette raises three...