U.S. v. Cardall

• Decision Date: 25 September 1985
• Docket Number: No. 84-2320,84-2320
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard Taylor CARDALL, Joseph A. Holman, Barry Crowther, Kenyon V. Blackmore, Richard Thiriot Cardall, David Lon Ashby, Glen L. Wright, Stanley L. Willmitt, Gean Cannon, Eric W. Bjorklund, Gerald L. Turner, and Farrell Anderson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1128

773 F.2d 1128

UNITED STATES of America, Plaintiff-Appellant, v. Richard Taylor CARDALL, Joseph A. Holman, Barry Crowther, Kenyon V. Blackmore, Richard Thiriot Cardall, David Lon

Ashby, Glen L. Wright, Stanley L. Willmitt, Gean Cannon,

Eric W. Bjorklund, Gerald L. Turner, and Farrell Anderson,

Defendants-Appellees.

No. 84-2320.

United States Court of Appeals, Tenth Circuit.

Sept. 25, 1985.

Louis M. Fischer, Atty., Dept. of Justice, Washington, D.C. (Brent D. Ward, U.S. Atty., Samuel Alba and Stewart C. Walz, Asst. U.S. Attys., Salt Lake City, Utah, with him on brief), for plaintiff-appellant.

Timothy C. Houpt, Houpt & Eckersley, Salt Lake City, Utah, for defendants-appellees Wright and Bjorklund.

Martin Verhoef, Salt Lake City, Utah, for defendants-appellees Holman and Ashby.

Edwin F. Guyon, Salt Lake City, Utah, for defendants-appellees Anderson, Blackmore, and Cannon.

Before BARRETT and MOORE, Circuit Judges, and BRETT, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This is an appeal from orders suppressing certain evidence upon findings that government agents violated defendants' Fourth Amendment rights, as well as upon findings that provisions of 18 U.S.C. Sec. 2517 restricting disclosure of evidence obtained by wire interception were violated. The government has appealed, contending the trial court failed to properly consider the "good faith" rule relating to seized evidence and that the trial court improperly construed the restriction on disclosure. Appellees-defendants contest the propriety of this appeal, contending it was not timely taken. We hold the appeal is timely, and we reverse the judgment of the trial court on the merits.

I.

The seminal question is whether we have jurisdiction in this appeal. The issue arises because the government filed successive motions in the trial court seeking reconsideration of that court's initial order on defendants' suppression motions. After the district court entered its first suppression order on March 14, 1984, the government filed its first motion for reconsideration on April 12, contending the court should consider a good faith exception to the exclusionary rule imposed by the court. This motion was denied, after reconsideration on June 7, 1984. While the government was preparing its notice of appeal from the second order, the Supreme Court decided United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), on July 5, 1984. The decision apparently prompted the prosecutor to contact the district judge to advise him of the pendency of the appeal and of the Leon decision. During an ensuing ex parte conversation, the judge suggested the government defer the appeal and file a second motion for reconsideration in light of Leon. The second motion was filed on July 9, 1984, the last day for filing the notice of appeal from the June order. (There was an intervening weekend.)

After reconsideration of the good faith issue raised in the second motion, the court concluded the Leon good faith rule was inapplicable and adhered to its prior ruling. The government filed its notice of appeal within 30 days of the entry of this last order.

The question now before us is whether the filing of the second motion for reconsideration tolled the time for filing the notice of appeal. While conceding the filing of the first motion for reconsideration had that effect, United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), defendants contend the second motion was not similarly effective. In support of that argument, defendants rely upon United States v. Martinez, 681 F.2d 1248 (10th Cir.1982). In that case, we held that the filing of a motion to reconsider a suppression order filed by the government within 30 days of the entry of that order tolled the 30-day time limit for an appeal by the government under 18 U.S.C. Sec. 3731. Defendants argue that the order appealed from (presumably the first order, and not the subsequent orders denying applicability of a good faith rule) was more than 30 days from the filing of the second motion for reconsideration, thus invalidating this appeal.

Defendants suggest that the government should have proceeded in accordance with the route followed in Garcia v. Regents of the University of California, 737 F.2d 889 (10th Cir.1984). In that case, the appellant had obtained reconsideration of an order but wished to raise another issue; hence a notice of appeal was filed, and this court was asked to grant a limited remand to consider the new issue. The government concedes this procedure would have obviated the question now before us, but it contends failure to follow the wiser route does not vitiate its attempt to gain review. We agree.

We regard this as an unusual case; therefore, we limit our holding to its particular circumstances. Initially, it must be noted that we do not, by finding jurisdiction in this case, countenance the filing of repetitious motions seeking reconsideration in the trial court as an avenue to extending appeal rights. Indeed, we have already noted the ineffectiveness of such a tactic. United States v. Marsh, 700 F.2d 1322 (10th Cir.1983). There we held that successive motions raising the same issues did not toll the time for filing a notice of appeal. Yet, here the government is not seeking to raise the same issue in its second motion for rehearing.

No one can seriously contend that the second motion did not deal with the question of applying a good faith rule to the seizure of evidence pursuant to a warrant, but reason dictates that we look not to the generic nomenclature of a pleading but to its substance to determine whether it is a repetitive motion in the context of the tolling issue. Facially, the government's second motion had the earmarks of redundancy, but it is obvious its intent was to raise an issue not previously considered. Moreover, it is patent that the impetus behind this second motion was a decision of the Supreme Court that was not in existence when the trial court's previous ruling was made. The last motion did not seek to repeat a position previously taken, and the notice of appeal was timely in the context of Martinez, supra.

There is also a practical consideration to be given this case. The trial judge was evidently concerned whether Leon effectively negated his prior ruling in such a way that an appeal would have resulted in a remand for his consideration of the Leon issue. His perception of judicial economy correctly indicated the wise course of deferring an appeal until he had time to reconsider the issue so that this court could properly review the matter in its full context. We not only approve but also applaud that practical approach, and we will not consider it a hindrance to our jurisdiction. ¹ See United States v. Jones, 608 F.2d 386 (9th Cir.1978).

II.

Having concluded the case is properly before us, we now turn to the merits. Defendants were charged by indictment with the crimes of wire and mail fraud, interstate transportation of money taken by fraud, bankruptcy fraud, and racketeering. The charges arose from allegations that the defendants were involved in a "Ponzi scheme" in which they promised investors a 96% annual return on their investments in certain accounts payable factoring companies. The indictment alleged the defendants had defrauded investors in 38 states and consequently obtained more than $15.6 million.

Prior to trial, defendants moved to suppress evidence seized by warrant from several business enterprises under their control. After an evidentiary hearing, the motions were granted in part. The court found the affidavit filed in support of the warrant disclosed sufficient probable cause to support a search for evidence of bankruptcy fraud, but it held the affidavit lacked probable cause for any other offense. Additionally, the court concluded agents who conducted the search exceeded the scope of the warrants. Accordingly, the court suppressed all evidence relating to the other indicted offenses.

A.

The first question we must consider is whether the affidavit is fatally defective as found by the trial court. We conclude that it is not. We judge the affidavit in the context of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2713, 76 L.Ed.2d 527 (1983).

We are constrained to observe the affidavit here is far from that kind of document that could have been produced by a lawyer after careful consideration of all the facts known to the investigating agents at the time the warrant was sought. Indeed, we judge this affidavit to be just what the Supreme Court had in mind when it said that affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). In reviewing the constitutional sufficiency of such affidavits, the Court continued: "Technical requirements of elaborate specificity once exacted under common law pleading have no proper place in this area." Id. Hence, in Illinois v. Gates, supra, the Court concluded "the after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of a de novo review." Gates, supra, 103 S.Ct. at 2331. The Court accordingly reaffirmed the "common sense" approach to the interpretation of search warrant affidavits in determining their constitutional sufficiency. Thus, a magistrate must make a practical determination, upon all the circumstances set forth in the warrant, whether there is a fair probability that evidence of a crime will be found in a particular place. Gates, supra; United States v. Berisford, 750 F.2d 57 (10th Cir.1984).

The affidavit in this case was hurriedly prepared by Loren Brooks, an agent of the FBI, who had been leading an investigation of the defendants for approximately six months prior to the search. ² Some of the information used in the affidavit was gleaned from evidence obtained by Brooks in a previously authorized wire...