U.S. v. Cortina
| Decision Date | 11 September 1980 |
| Docket Number | No. 79-2226,79-2226 |
| Citation | 630 F.2d 1207 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Dominic CORTINA et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julian Solotorovsky, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.
John C. Tucker, Jenner & Block, Chicago, Ill., for defendants-appellees.
Before FAIRCHILD, SWYGERT and BAUER, Circuit Judges.
The government appeals from an order of the district court suppressing certain evidence obtained in a search pursuant to a search warrant. The trial court found, and the record supports, the following facts: William I. Brown, an agent for the Federal Bureau of Investigation, deliberately lied in an affidavit presented to support the search warrant. There was no probable cause for the search without the facts misrepresented by Brown. The district court suppressed all the evidence resulting from the search. We affirm; this Court will not condone a fraud upon the judicial system.
The twelve individual and two corporate defendants here were indicted for racketeering, extortion, and illegal gambling in connection with two race track messenger services, Mr. Lucky's Messenger Service (Mr. Lucky's) and Finish Line Messenger Service (Finish Line). 1 The indictments were the result of an investigation conducted over several years by the Federal Bureau of Investigation (FBI) and the Internal Revenue Service (IRS).
As part of his investigation of the messenger services, FBI Agent William Brown contacted Pamela Bridges, a former employee of Mr. Lucky's, in late March 1977. He showed her pictures of the individual defendants, and asked if she could identify them and explain their jobs at Mr. Lucky's. Tr. 482-84. Bridges recognized most, but not all, of the individuals. Tr. 493, 496. From time to time thereafter Brown had conversations with Bridges in which she described other individuals at Mr. Lucky's. Brown reported the substance of his conversations with Bridges on contact sheets.
In June 1977, Bridges began working at Finish Line Messenger Service. She continued talking with Brown, and was then able to identify additional persons who she discovered worked at Finish Line. Tr. 493, 496. Bridges received a total of $3,400 for the information she gave Brown. Tr. 464.
On April 22, 1977, FBI Agent Linda Stewart presented Magistrate Jurco with an affidavit in support of warrants to search defendants William McGuire, Michael LeDonne, and the main offices and recap offices of Mr. Lucky's and Finish Line. The warrants called for seizure of:
all instrumentalities, implements, and apparatus, certain betting records and wagering paraphernalia consisting of, but not limited to, accounting sheets, tape recordings, adding machines, telephone numbers, (and) telephone records.
Stewart did not have personal knowledge of most of the information in the affidavit. Instead, she swore that a "confidential informant" referred to as "Source Number One" "told Special Agent William I. Brown . . . who in turn told me" the information contained in the affidavit. Stewart supported the reliability of the informant by stating that Source Number One has furnished information regarding the identities of numerous individuals allegedly engaged in illegal gambling activities. Most of this information has been corroborated by independent investigation by Special Agents of the Federal Bureau of Investigation and officers of the Chicago Police Department including examination of police arrest records, physical observations and comparison with information received from other confidential sources.
The affidavit recited many "facts" allegedly obtained by Source Number One through "observation and personal conversations" with many of the defendants. The affidavit stated that several of the defendants had admitted to Source Number One that they were not in fact acting as messenger services, but were "booking" a large portion of the orders that the public placed with them. As it was later learned, Source Number One was Pamela Bridges.
Based on the affidavit, Magistrate Jurco issued the search warrants at issue here. When the warrants were executed on April 22, 1977, FBI agents seized hundreds of boxes of items and papers from the main offices of Mr. Lucky's and Finish Line. The agents took virtually every scrap of paper at each location, including thousands of dollars. The warrant for the personal search of William McGuire was executed on McGuire on the premises of Finish Line. 2
After the indictment was filed, the defendants moved to suppress the results of the searches on the grounds that many of the documents seized were outside the scope of the warrants. The defendants also argued that the warrants were supported by a false affidavit. In support, they attached the affidavits of several of the defendants who swore that they had never said any of the things attributed to them by Source Number One. The defendants requested a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to determine whether government agents misrepresented information in the affidavit. Judge Decker denied the motion to suppress on June 27, 1979. He held that the defendants' affidavits did not establish that the government did not receive the information in the affidavit, but only that Source Number One may have lied or exaggerated when providing the information.
There matters rested until September 11, 1979, the day before trial was to begin. As part of its final pretrial preparation, the government had received the FBI informant file on Pamela Bridges. The file included Agent Brown's contemporaneous reports of his meetings with Bridges, a portion of an FBI administrative file, and Bridges's grand jury testimony. Since the government expected to call Bridges as a witness, it gave portions of the file to the defendants pursuant to the Jencks Act, 18 U.S.C. § 3500. The government also delivered the additional materials to Judge Davies (to whom the case had been reassigned) with a letter reciting that "(b)ased on our review of the file, we anticipate that the defendants may renew their motion to suppress the evidence and the accompanying motion for an evidentiary hearing."
The government had understated its concern. Brown's contact reports and Bridges's grand jury testimony supported almost none of the information attributed to Source Number One in the April 22 affidavit. Information in eight of the affidavit's fourteen paragraphs was not supported by material in the file. These eight paragraphs stated that Source Number One had obtained, on dates specified in the affidavit, the following information from various defendants at Mr. Lucky's and Finish Line:
(a) through observation and personal conversations with (defendants) Raymond Brown, Michael LeDonne, William McGuire and individuals associated with McGuire, that McGuire is in charge of handicapping and booking 75% of all horse racing bets called into the Finish Line Express Messenger Service located at 506 West Van Buren (b) that McGuire had told Source Number One that the bets handicapped by McGuire are retained in private bookmaking operated by McGuire and his associates. The remainder are sent to local race tracks for placement in the pari-mutuel wagering system;
(c) that Source Number One, while present at 506 West Van Buren, had learned through conversations with persons employed by Finish Line and through personal observations that five Negro females are employed as clerks at 506 West Van Buren and these women record on cassette tapes all bets called into the main office. The tapes are then transcribed on paper by women and given to McGuire or Ralph Carbonari. McGuire and Carbonari handicap all bets and determine which bets will be sent to the local race tracks to be bet and which will be kept for their own bookmaking;
(d) that Source Number One learned, through several personal conversations with Carbonari and McGuire, that Finish Line Express Messenger Service was handling approximately $40,000 worth of horse bets per day and would send only $10,000 worth of these bets to the local tracks;
(e) that McGuire said in substance to Source Number One that he continues to determine what bets are to be placed at the local tracks and which are to be kept for the private bookmaking business run by McGuire and his associates;
(f) that Source Number One had learned, through observations and personal conversations with Michael LeDonne and individuals employed at Mr. Lucky's Messenger Service, that LeDonne is in charge of handicapping and booking approximately 75% of all horse racing bets called into Mr. Lucky's Messenger Service;
(g) that Source Number One had learned, through personal conversations with Michael LeDonne, that generally Mr. Lucky's Messenger Service handles approximately $20,000 worth of bets from its twelve storefront Mr. Lucky's Messenger Services on a daily basis and of this only approximately $5,000 worth of bets were placed at the race tracks;
(h) that Source Number One had learned, through personal conversations with Sandra Fankaway, Faye Conley, Carla D. Allen, Gwendolyn Last Name Unknown, and others, that they have personal knowledge that not all bets placed are sent to the race tracks to be bet, but that some are kept and applied to the bookmaking business operated by McGuire and his associates.
Only two of the affidavit's remaining paragraphs alleged any incriminating information. The rest contained material identifying the defendants' names and positions.
Defense counsel submitted the list of inconsistencies they had discovered to the district court. All the defendants moved for an evidentiary hearing, and Judge Davies granted the motion.
Three witnesses testified at the three-day evidentiary hearing: Linda Stewart, who was the former FBI agent who prepared the affidavit, Agent Brown, and Pamela Bridges. The...
To continue reading
Request your trial
-
United States v. Dusablon, Cr. No. 81-00009-B.
...v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676; United States v. Martin, 615 F.2d 318, 329 (5th Cir. 1980); United States v. Cortina, 630 F.2d 1207, 1213 (7th Cir. 1980). ii. The Objective Sufficiency of the Affidavits as Dusablon has not satisfied the second element of the Franks test, req......
-
United States v. Gervasi
...looks only to the activities of the state officials, but these individuals are not "parties before the bar." Id. Cf. United States v. Cortina, 630 F.2d 1207 (7th Cir.1980) (court affirms exercise of supervisory power to suppress evidence seized pursuant to search warrant obtained based on d......
-
U.S. v. Udziela
...power when the integrity of the judicial system was threatened or undermined by executive misconduct. See, e.g., United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980); United States v. Poole, 379 F.2d 645 (7th Cir. On the other hand, as we observed in Cortina, the federal supervisory powe......
-
State v. Clark
...view focusing on propriety of government conduct). Lower courts have also exercised the supervisory power. See, e.g., United States v. Cortina, 630 F.2d 1207 (7th Cir.1980) (misstatements by officials in obtaining a search warrant led to exclusion of evidence); United States v. Valencia, 54......
-
Bearing false witness: perjured affidavits and the Fourth Amendment.
...v. Mulvihill, 113 F.3d 396, 399-401 & n.4 (3d Cir. 1997). (244.) See generally Amar, supra note 230. (245.) United States v. Cortina, 630 F.2d 1207, 1213 (7th Cir. (246.) Chappel v. State, 71 Ala. 322, 324 (1882).
- Survey of Washington Search and Seizure Law: 1988 Update
...5.4(b), 5.20, 5.22(c) United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 821, 101 S. Ct. 690 (1981) § 4.6(a) United States v. Cortina, 630 F.2d 1207 (7th Cir. 1980) § 7.6(d) United States v. Crews, 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244 (1980) § 7.8(f) United States v. Davis, 346 ......- The Broken Fourth Amendment Oath.
...Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75,102-06 (1992). (93.) United States v. Cortina, 630 F.2d 1207, 1211-12 (7th Cir. (94.) Van Duizend et al., supra note 39, at 55 ("Even the training materials examined in [two of the major cities] merel......- Executive Secrecy: Congress, the People, and the Courts
...(1994) (discussing broad knowledge in criminal justice community of widespread perjury by police officers); United States v. Cortina, 630 F.2d 1207, 1208 (7th Cir. 1980) (affirming district court order suppressing all the evidence in a federal criminal case because of a perjurious search wa......Request a trial to view additional results - Survey of Washington Search and Seizure Law: 1988 Update