U.S. v. Chaar
| Decision Date | 11 March 1998 |
| Docket Number | No. 96-2316,96-2316 |
| Citation | 137 F.3d 359 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Oussama Mohamed CHAAR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jennifer J. Peregord (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.
Amy L. Ryntz (argued), Robert E. Forrest (briefed), Raymond & Prokop, Southfield, MI, for Defendant-Appellant.
Before: BOGGS and MOORE, Circuit Judges; and DOWD, * District Judge.
BOGGS, J., delivered the opinion of the court, in which MOORE, J., joined. DOWD, D.J. (pp. 365-368), delivered a separate dissenting opinion.
Oussama Mohamed Chaar appeals from the district court's denial of a motion to suppress evidence, which led to his conviction for smuggling cigarettes. We affirm the district court.
At 12:52 pm, on September 22, 1994, the Detroit office of the FBI received an anonymous tip. 1 The tipster said that Oussama Chaar was smuggling $80,000 worth of cigarettes a week into Michigan and selling them to local gas stations. He said that Chaar and an associate named Jamil would be bringing a shipment of cigarettes in from Kentucky that afternoon some time before 4 pm, and that they would take them in a truck to a storage facility on 23 Mile Road, between I-94 and Gratiot Road. Finally, he described Chaar as: "34 years old, fat guy, glasses, drives 1991 two tone Aerostar, lives in an apartment on 23 Mile near I-94." Chaar had not been the subject of any previous investigations.
The FBI relayed the tip to the Bureau of Alcohol, Tobacco, and Firearms (ATF), which assigned the case to Special Agent Krappmann. Krappmann was informed by other investigating officers that there was another storage area at 21 Mile Road and Gratiot (investigation of the facility at 23 Mile having apparently proved fruitless), and that a check with the facility revealed that Chaar leased two storage lockers there. The rental agent indicated that Chaar had said that he worked for a gas station, and that he would be using the lockers to store excess cigarettes.
At about 4:30 pm, Krappmann called the United States Attorney's office from the storage facility to begin the process of getting a telephonic search warrant. He told Assistant United States Attorney Cynthia Oberg that there were exigent circumstances justifying the telephonic process, because it would be easy for a smuggler to transfer the illegal cigarettes into used, tax-stamped cases; because it was too late in the day to travel back to Detroit (about 25 miles) to get a warrant by normal means; and because it would be difficult to maintain visual surveillance in the meantime.
Krappmann, Oberg, and Magistrate Judge Lynn Hooe had a conference call at 4:50. According to an affidavit filed later by Krappmann, the call was tape recorded. According to the boilerplate language of the warrant form, Krappmann was appropriately placed under oath. Krappmann and Magistrate Judge Hooe filled out identical warrant forms in an identical manner. Magistrate Judge Hooe determined that there was probable cause to believe that contraband cigarettes were being stored at Chaar's storage lockers at the storage facility on 21 Mile, and that the exigent circumstances justified a telephonic search warrant. At about 5:05, Magistrate Judge Hooe authorized the warrant and gave Krappmann permission to sign Hooe's name to Krappmann's copy of the warrant form, pursuant to FED.R.CRIM.P. 41(c)(2)(C).
Shortly after the magistrate judge authorized the warrant, Chaar and another man arrived in a two-tone Aerostar. Chaar mostly matched the physical description the informant had given. Krappmann and his assistant observed Chaar and his accomplice go to Chaar's storage lockers and unload cases of cigarettes from the van. As the officers approached the van, they noted that the cases (inside the van but easily viewable) did not have Michigan tax stamps on them. When the officers identified themselves to the men, the men shut the van doors. The officers executed the warrant and seized from the storage lockers 687 cartons of cigarettes that lacked Michigan tax identification.
Chaar was indicted for possession of contraband cigarettes, in violation of 18 U.S.C. § 2342(a), and for aiding and abetting his co-conspirator, in violation of 18 U.S.C. § 2(a). He moved to suppress the incriminating evidence. The district court rejected the motion, and Chaar entered into a plea agreement with the government. The agreement was conditional, allowing Chaar to appeal the denial of his motion to suppress. Chaar pleaded guilty, and the district court sentenced him to 36 months of probation and a $2,500 fine. Chaar then filed this timely appeal.
Chaar raises three objections in his appeal. First, he argues that the evidence obtained pursuant to the warrant should have been suppressed because the recording of the telephonic conference between Krappmann and the magistrate judge (and the transcript, if one was made) has been lost. No duplicates are available, and so, Chaar argues, this court has no basis to review the warrant. Second, he claims that there was not probable cause to support the warrant. Third, he argues that the Leon "good faith" exception should not apply.
FED.R.CRIM.P. 41(c)(2)(D) requires, with regard to telephonic warrants, that:
[T]he Federal magistrate judge shall record ... all of the call after the caller informs the Federal magistrate judge that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. If a voice recording device is used or a stenographic record made, the Federal magistrate judge shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the Federal magistrate judge shall file a signed copy with the court.
The government admits that those requirements were clearly violated in this case. Although the record does not reveal how, the tape recording was lost and the transcript (if there was one) was lost as well. The first question before us is what effect this violation of the rules has on the admissibility of the evidence.
Initially, we note that as a matter of placing blame, this case is a poor candidate for suppression of the evidence. "[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984). We do not exclude evidence, absent constitutional violations, unless the exclusion furthers the purpose of the exclusionary rule, id. at 918, 104 S.Ct. at 3418, and it was Magistrate Judge Hooe's error (not any misconduct by Officer Krappmann) that deprived us of both tape and transcript. Therefore, on the facts of this case, exclusion is an inapt remedy. 2
The disposition of this Rule 41(c)(2)(D) violation is a matter of first impression in this circuit. Most Rule 41(c)(2)(D) cases, in this and other circuits, have dealt with the oath requirement, which is not at issue here, as Chaar does not contest the validity of Krappmann's oath. 3 Outside of the oath context, two other circuits have considered failures of the recording and transcription requirements of Rule 41(c)(2)(D). In United States v. Richardson, 943 F.2d 547, 549 (5th Cir.1991), the Fifth Circuit held that in the absence of a recording or transcript, a warrant does not merit a presumption of regularity. Nevertheless, the court held that it was appropriate for a reviewing court to use extrinsic evidence to examine the circumstances surrounding the issuance of the warrant. Ibid.
(1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.
United States v. Stefanson, 648 F.2d 1231, 1235 (9th Cir.1981).
We agree with both of these rulings in the following senses with respect to Rule 41(c)(2)(D). 4 First of all, although the evaluation of a warrant after a violation of Rule 41(c)(2)(D) must be searching and skeptical (the Rule is, after all, designed to preserve evidence for reviewing courts), district courts are well-equipped to weigh any evidence that is available after the fact, and defendants can both contest evidence through cross-examination and submit their own evidence. Furthermore, suppression is an appropriate remedy only when the violation is either of constitutional dimensions (i.e. the search became constitutionally unreasonable), is prejudicial, or is intentional.
None of these three bases for suppression apply here. First, as will be discussed below, the search was not unconstitutional per se. Second, Chaar has given us no basis to conclude that, absent the violation, the search would have been less abrasive or would not have occurred. Third, Chaar has not alleged, let alone shown evidence, that the violation was intentional. Although we can imagine cases in which a Rule 41(c)(2)(D) violation would meet our criteria, we require more than mere conjecture to suppress evidence.
We acknowledge that neither we nor Chaar have any way now of knowing what the magistrate judge knew when he issued the warrant. Not even the original tip sheet is part of the record--the only evidence from which we can evaluate the sufficiency of the evidence underlying the warrant is Krappmann's affidavit, which was prepared nineteen months after the events it described. Given this epistemological problem, we are less than enthusiastic about affirming this search....
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