U.S. v. Cunningham

• Decision Date: 03 February 1997
• Docket Number: No. 96-1828,96-1828
• Citation: 113 F.3d 289
• Parties: UNITED STATES of America, Appellant, v. Rex W. CUNNINGHAM, Jr., Thomas Ferris, Brian Hoyle, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 289

113 F.3d 289

UNITED STATES of America, Appellant, v. Rex W. CUNNINGHAM, Jr., Thomas Ferris, Brian Hoyle Defendants, Appellees.

No. 96-1828.

United States Court of Appeals First Circuit.

Heard Feb. 3, 1997.

Decided May 19, 1997.

Todd E. Newhouse, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Boston, MA, was on brief, for the United States.

Wendy Sibbison, Greenfield, MA, for appellees.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOUDIN, Circuit Judge.

In the district court, the defendants in this criminal case moved to suppress evidence as illegally seized and, based on the magistrate judge's report, the district court granted the motion. The government filed an interlocutory appeal from the suppression order. We reverse.

I.

In late February 1992, Carmen Picknally, an assistant district attorney in Hampden County, Massachusetts, applied to the state Superior Court for a warrant, pursuant to Mass. Gen. Laws ch. 272, § 99(F), to authorize the interception of telephone calls to or from two specified cellular car telephone numbers. The car telephones in question were located in cars controlled by defendant Rex W. Cunningham, Jr., and the offenses under investigation were suspected violations of state anti-gambling statutes. Mass. Gen. Laws ch. 271, § 17.

A supporting 109-page affidavit by state trooper Timothy Alben described evidence that Cunningham had used threats in attempting to collect gambling debts for bets that he had taken. The affidavit also set forth information from five confidential informants about a large-scale gambling organization allegedly controlled by Cunningham, including specifics as to how the organization worked, the names of employees, telephone numbers, and the location of records and cash.

On February 28, 1992, Justice Constance Sweeney, of the state Superior Court, issued the requested warrant, and signed ancillary orders directed to two carriers. Several incriminating calls were intercepted between Cunningham and others and were described in another affidavit of Alben in support of a requested extension sought by Picknally on or about March 17, 1992. Justice Sweeney granted the requested extension. Surveillance of the two telephones ended on April 1, 1992.

On April 17, 1992, Picknally applied to the Superior Court for a new warrant, this time (according to the application's caption) "authorizing the interception of oral communications of ... Cunningham within an establishment known as Dillons (sic) Tavern." The application identified Dillon's Tavern at a street address in Springfield, Massachusetts, and said that it was on property controlled by Cunningham and his relatives. Incorporating a new Alben affidavit, the application referred to loansharking, Mass. Gen. Laws ch. 271, § 49, as well as gambling, as suspected offenses.

Although the caption referred to interception of oral communications "within ... Dillons (sic) Tavern," the first paragraph described the application as one for a warrant "to intercept certain wire and oral communications," and there are later references to "wiretaps" and, separately, to "oral communications ... within Dillons (sic) Tavern." The affidavit also asked for authority for Alben to make secret entries into Dillon's Tavern "for the purpose of installation and activation of oral interception devices." This application, it appears, was a poorly edited markup of the original wiretap application.

Immediately below Picknally's signature was a paragraph signed by the district attorney for the county, saying that he had reviewed the application and affidavit and that the proposed use of electronic surveillance relative to two specified telephone numbers was consistent with county policy. The two listed telephone numbers were the cellular telephone numbers specified in the original application. Apparently the paragraph had been copied from the original warrant application without change.

The supporting Alben affidavit, this time 62 pages in length but attaching the original affidavit as well, described Cunningham's caution in using the telephone and provided reasons for believing that Cunningham and others were using Dillon's Tavern for meetings in aid of gambling and loansharking. The affidavit described Cunningham's regular use of a particular table in Dillon's Tavern to conduct his business. It also explained why oral interceptions were needed to supplement other evidence.

Alben's affidavit did not contain the confusing jumble of references to wiretaps and oral communications that marred the Picknally application. It asked for approval to intercept oral communications within Dillon's Tavern, specifying that interception would

be limited to only such times that physical surveillances of this DILLONS TAVERN and Rex W. CUNNINGHAM Jr. can reasonable (sic) place CUNNINGHAM within this location and that interceptions will take place only at or near the particular table within the dining area which has been identified within this affidavit as being consistently used by CUNNINGHAM or his associates.

It also asked approval to enter Dillon's Tavern to install technical equipment to achieve the interceptions.

The warrant signed by Justice Sweeney had a caption similar to the application, specifically referring to interception of oral communications; but--like the application-the warrant also referred confusingly to wire communications. It approved the secret entry to install equipment, and imposed various safeguards. The warrant was extended numerous times, and assault and battery was added as a suspected offense. Surveillance ended on November 1, 1992. By then 125 cassette tapes had been accumulated and were sealed by the Superior Court.

On April 21, 1995, a federal grand jury in Springfield indicted Cunningham on RICO violations, loansharking, illegal gambling activities, and conspiracy to commit those offenses, 18 U.S.C. §§ 2, 892, 894, 1955, and 1962(c) and (d). Codefendants Brian Hoyle and Thomas Ferris were charged with loansharking conspiracy. Most of the evidence against Cunningham, and all of the evidence against the co-defendants, derived from the electronic surveillance and from searches conducted under state-court issued warrants at various sites shortly before the surveillance terminated.

By joint motion filed on December 15, 1995, the defendants moved to suppress materials acquired by electronic surveillance under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20. That statute governs interception of both wire communication and oral communication, laying down detailed standards and procedures. Id. §§ 2516-18. It also provides for exclusion from evidence of interceptions taken in violation of the statute. Id. § 2515.

After a two-day evidentiary hearing, including testimony from Picknally, Alben, and Hampden County District Attorney William Bennett, the magistrate judge issued a report on March 28, 1996. In it, he recommended that the motion to suppress be allowed as to all electronic interceptions of conversations at Dillon's Tavern. He said that the confusion in the warrant meant that it did not comply with statutory requirements as to specificity, 18 U.S.C. § 2518(4), nor--assuming a good faith exception existed--was reliance on the warrant objectively reasonable.

On May 17, 1996, the district court approved the magistrate judge's recommendation. Its analysis tracked that of the magistrate judge and his rejection of a "good faith" defense was adopted by cross reference. In memoranda dated June 13 and July 12, 1996, the district court addressed two successive government motions for reconsideration but stood by its earlier conclusion. The government then brought the case to us by interlocutory appeal. 18 U.S.C. § 3731.

II.

On review of a suppression order, we defer to the factfinder's findings of raw fact unless clearly erroneous, and we consider issues of law de novo. United States v. Morris, 977 F.2d 677, 680 (1st Cir.1992). In the past, there has been deference accorded to the factfinder's judgment in applying general standards to particular known facts; but the Supreme Court has recently stressed our responsibility, in a related Fourth Amendment context, to review "mixed questions" from an independent vantage. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996) (reasonable suspicion and probable cause).

The government offers two alternative reasons for reversal. The first is its claim that the warrant adequately, although not perfectly identified oral communications as its target--especially since Justice Sweeney and Trooper Alben as executing officer knew that this was its purpose. The second argument is that the so-called good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is available under the statute in this case and applies on the present facts.

At the threshold, defendants object that neither basis for appeal was sufficiently preserved. Because we consider only the first ground on the merits, our discussion of this threshold objection is similarly limited. To decipher that objection, it is necessary to understand how the government's defense of its warrant evolved on the path from the magistrate judge to the district court and finally to us.

Before the magistrate judge, the government defended its warrant on the ground that, analyzing the wording in detail, the errors were technical or clerical. The government did not expressly assert that the personal knowledge of the authorizing judge and executing officer were pertinent; but the magistrate judge touched obliquely on the issue, saying that the government's "excuse" would, if accepted, "allow agents to conduct searches so long as they understood what was intended by the orders which their attorneys drafted for signatures by the court."

In its ...