U.S. v. Falcon, s. 84-2176

• Decision Date: 11 July 1985
• Docket Number: Nos. 84-2176,84-2230,s. 84-2176
• Citation: 766 F.2d 1469
• Parties: UNITED STATES of America, Appellee, v. Ariel George FALCON and Robert Paul Jordan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1469

766 F.2d 1469

UNITED STATES of America, Appellee, v. Ariel George FALCON and Robert Paul Jordan, Defendants-Appellants.

Nos. 84-2176, 84-2230.

United States Court of Appeals, Tenth Circuit.

July 11, 1985.

Michael P. Carey, Denver, Colo., for defendant-appellant Falcon.

Jeffrey R. Edelman, Denver, Colo., for defendant-appellant Jordan.

Patrick T. Murphy, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver Colo., with him on the brief), for appellee.

Before HOLLOWAY, Chief Judge, and LOGAN and TIMBERS ^*, Circuit Judges.

TIMBERS, Circuit Judge.

Appellants Falcon and Jordan appeal from judgments of conviction entered August 20, 1984 after a jury trial in the United States District Court for the District of Colorado, Sherman G. Finesilver, Chief District Judge. Both appellants were convicted of attempting to collect an extension of credit by extortionate means in violation of 18 U.S.C. Sec. 894 (1982) (Count I); of travelling in interstate commerce with the intent to commit a crime of violence in violation of the Travel Act, 18 U.S.C. Sec. 1952 (1982) (Count II); and of conspiring to commit an offense against the United States in violation of 18 U.S.C. Sec. 371 (1982) (Count III). The conspiracy count was premised on the substantive offenses specified in Count II. Appellants each were sentenced to three and a half years imprisonment on Count I and to two years imprisonment on each of Counts II and III. All of the sentences were ordered to run concurrently. Appellants have commenced serving their sentences of imprisonment.

Appellants raise numerous claims of error on this appeal. We hold that none has merit. We find that the principal claim of error is appellant Falcon's claim that a consent search by FBI agents at his brother's apartment and the seizure of certain evidence that was admitted against Falcon at his trial violated the Fourth Amendment. We shall focus in this opinion principally on that claim, as counsel did at oral argument. We also have reviewed carefully both appellants' other claims of error, to which reference will be made briefly in this opinion.

I.

We shall summarize only those facts believed necessary to an understanding of our rulings on the legal issues presented on this appeal.

The events leading to the indictment, trial and conviction of these appellants began in the spring of 1982. At that time, Dr Patricia Stranahan was a partner with Dr. Michael Roark in a medical practice at Thornton, Colorado. The two also were co-investors in a multi-million dollar medical complex. Roark, however, withdrew his financing upon the advice of his accountant and refused to go through with the deal. This angered Stranahan. She confronted Roark and insisted upon his fulfillment of their agreement. When Roark continued to refuse, Stranahan mortgaged her husband's farm land for $150,000 to provide the additional necessary financing. The project collapsed nevertheless. In the spring of 1983, Stranahan commenced a civil action against Roark. In July of 1983, Stranahan attempted to force Roark into involuntary bankruptcy based on a dispute over the dissolution of their medical partnership and the distribution of its assets. Unknown to Stranahan and her husband, Bruce Richardson, Roark left Colorado on April 2, 1984 and obtained employment at Mercy Hospital in Buffalo, New York.

Stranahan and Richardson believed that Roark had cheated them and caused the loss of their investment in the complex. Richardson, who was a former leader of a motorcycle gang in Colorado, sought assistance in the collection of this perceived "debt". By letter postmarked April 5, 1984, Richardson contacted Robert L. Konitski, who operated out of a post office box in Rockford, Illinois. Konitski had advertised in Soldier of Fortune magazine under the name Delta Enterprises. The advertisement represented that Delta Enterprises was an international "collection agency" capable of performing any type of collection.

Richardson told Konitski that a large sum of money had been taken from his wife under false pretenses. He wanted Konitski to recover it. Konitski and Richardson entered into two contracts. The first required Konitski to collect $185,000 from Roark. The second called for a similar collection of $173,000 from Joe Debreceni, who had been the developer of the now-defunct medical complex. Konitski was to receive 40% of the collected funds, less expenses.

Delta Enterprises, which operated out of the Rockford post office box referred to above, had no employees other than Konitski. To recruit assistance in the performance of his contracts with Richardson, Konitski placed another ad in Soldier of Fortune. Appellant Falcon, who was unemployed and lived in Bridgeport, Connecticut, mailed a resume to Konitski in response to the ad. Konitski called Falcon and informed him that, if successful, he would be paid $6000 for picking up a certain individual and forcing him to sign some documents. Konitski told Falcon that the job could include breaking and entering and the planting of electronic surveillance devices.

Konitski told Falcon to meet him in Denver, Colorado, and to bring a handgun, a pair of handcuffs and a blackjack. Konitski also told Falcon that he would teach him how to use chloroform to subdue the victim. In response to a question by Falcon, Konitski explained that the handgun could be brought on the airplane by packing it in his luggage.

Konitski received appellant Jordan's resume from a firm in New Hampshire called Northwest Investigations, although Jordan lived in Attleboro, Massachusetts. On April 16, 1984, Konitski called Jordan and offered to pay him $5000 if the collection was successful. As with Falcon, Konitski told Jordan to meet him in Denver where an individual would be picked up and forced to sign documents and that Jordan should bring a handgun and handcuffs.

Konitski then purchased airline tickets for himself, Falcon and Jordan. Konitski arranged and paid for hotel rooms and rental cars in Denver. Falcon flew from Connecticut and Jordan flew from Providence, Rhode Island to Denver.

On April 21, 1984, Konitski met Jordan and Falcon at their hotel in Northglenn, Colorado. Konitski knew that the plan from the beginning was to kidnap Roark. Richardson supplied detailed physical descriptions of Roark and Debreceni, a description of their residences, two blank quitclaim deeds and two blank promissory notes. Richardson also purchased electronic surveillance equipment. Other equipment and weapons had been brought to Colorado by Falcon and Jordan. Richardson and Stranahan provided appellants and Konitski with a tape recording on which Richardson and Stranahan explained the source of the dispute with Roark and Debreceni and detailed the points at which the victims were believed to be vulnerable, including the names of Roark's wife and son and the address of his father.

Appellants first were assigned to search courthouse records at Denver for property owned by Roark and by Debreceni. Falcon obtained a copy of a deed of trust with Roark's signature on it. A sample of Roark's signature was believed necessary for later comparison with that on the documents he would be forced to sign.

Appellants then began a surveillance of Roark's residence, not knowing that he had left Colorado for New York. On April 23, they followed an individual they believed was Roark but lost him in downtown Denver. Roark testified that he had returned to Denver from New York in late April for a long weekend.

Stranahan finally informed appellants that she believed Roark had left Colorado to work in Buffalo. On April 30, appellants left Denver for Buffalo where hotel reservations had been made for them by Richardson. Appellants travelled first from Denver to Bridgeport to pick up more equipment and to enlist Michael Rattley, an acquaintance of Falcon, to assist in the kidnapping.

Falcon, Jordan and Rattley met in Buffalo on May 5. They spotted Roark at Mercy Hospital on May 7 and followed him to his hotel. Konitski arrived in Buffalo the next day. On May 9, appellants and Rattley returned to Roark's hotel in a van. They lured Roark from his room by telling him that they had run into his car. Roark then was grabbed from behind, a gun was put to his head and he was forced into the back of the van. Roark was handcuffed, blindfolded and gagged by Falcon. Falcon and Jordan carried guns. Rattley was unarmed.

Roark was then driven into a vacant warehouse. Jordan unsuccessfully attempted to contact Konitski. The van left the warehouse looking for Konitski, who by that time had been joined by Richardson. The two groups finally met in the parking lot of Konitski's hotel.

The blindfold was improperly placed on Roark so that he was able to see Jordan leave the van in the parking lot and return with a manila folder. The van then departed from the parking lot and was driven to a construction site, followed by Konitski and Richardson. The acts, conduct and commands toward Roark at the construction site were directed by Richardson and Konitski and executed by Jordan, Falcon and Rattley. Roark was told to face the front of the van. The handcuffs and blindfold were removed. The kidnappers stood behind him and passed the papers over his shoulder. He was handed a copy of the deed to his house and was told to make sure that his signature conformed to that on the deed. Roark signed two blank deeds and a promissory note for $280,000. After each signing, a photograph of Roark was taken. Roark was given a bank account number and was told to deposit $260,000 in this account or his wife and son would be killed. The account later was proven to be Richardson's business checking account. Roark was driven back to the vicinity of his hotel and released.

When he reached his hotel, Roark contacted the local police and the FBI. He identified Richardson to the FBI as likely to be involved in the kidnapping. Falcon and Jordan became suspects...