U.S. v. Finucan

Decision Date26 May 1983
Docket NumberNo. 82-1506,82-1506
Citation708 F.2d 838
PartiesUNITED STATES of America, Appellant, v. Richard FINUCAN and Dee Rocca, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Robert J. Lynn, First Asst. U.S. Atty., Concord, N.H., with whom W. Stephen Thayer, III, U.S. Atty., Concord, N.H., was on brief, for appellant.

R. David DePuy, Manchester, N.H., and Wilbur A. Glahn, III, Concord, N.H., by appointment of the Court, with whom Alice C. Briggs, and McLane, Graf, Raulerson & Middleton Professional Association, Manchester, N.H., were on brief, for Dee Rocca.

Before CAMPBELL and BOWNES, Circuit Judges, and CAFFREY, * District Judge.


Appellee Dee Rocca and codefendant Richard Finucan were charged with conspiracy to commit mail fraud in violation of 18 U.S.C. Secs. 371, 1341 and 1343, in connection with a motor vehicle odometer "rollback" scheme, and with seven counts of violating section 404 of the Motor Vehicle Information and Cost Savings Act of 1972, 15 U.S.C. Sec. 1984, in connection with the same scheme. Rocca was also charged with three counts of perjury in violation of 18 U.S.C. Sec. 1623. In pretrial motions she moved to suppress all evidence obtained during an illegal search of her house as well as all evidence obtained by the government after the search. She also moved to dismiss the perjury charges. The district court granted the suppression motion and dismissed two of the three counts of perjury. The United States then brought this interlocutory appeal pursuant to 18 U.S.C. Sec. 3731.

A. The Investigation

Before considering the government's challenges to the suppression order, we shall describe the investigation that led to the indictments. Rocca was a bookkeeper at Auto Alley, a used car dealership run by Richard Finucan, Walter Harlan and Ralph Alley. According to evidence presented at the suppression hearing, Elzear Houle of the Consumer Protection Division of the New Hampshire Attorney General's Office began investigating Auto Alley in late 1978 or early 1979 for possible odometer tampering. Houle started his investigation by checking the records of the Concord Auto Auction for cars sold through the Auction by Auto Alley. After obtaining the vehicle identification number (VIN) of such cars, he ran the numbers through the computers of the motor vehicle departments of several New England states. This search enabled Houle to learn the name of the last titled owner of the car. Houle then contacted that individual and asked for the name of the dealer to whom the car was sold. That dealer was then questioned about that specific car and all other cars he sold to Auto Alley. Houle also obtained from the dealer copies of all pertinent documents relating to From this process Houle discovered that many cars which had been acquired by Auto Alley were later resold through the Concord Auto Auction by three Vermont dealerships ostensibly run by Bertrand Dupuis, a/k/a Joseph Dupuis. When the Vermont dealers resold them, the cars showed significantly less mileage than when first sold to Auto Alley. Evidence also suggested that many of the cars had been given false Maine registrations.

such cars. Houle then went back to the Concord Auto Auction to ascertain the disposition of the other cars sold by the dealer to Auto Alley.

On January 9, 1980 Houle and other state law enforcement officials executed a state search warrant, now conceded to be invalid, at Rocca's residence. Twelve to fourteen boxes of documents were seized, along with a ledger book and two Maine "true copy" stamps that could have been used to forge Maine registrations. 1 The search warrant materials were taken to the New Hampshire Attorney General's office and reviewed over the course of four months. According to Houle, he initialed the backs of the seized documents and then sorted them into files arranged by VINs.

Federal officials joined the investigation in the spring of 1980. Postal Inspector Gary Kinney then accompanied Houle to further interviews with dealers at which they obtained additional documents. Houle testified that at this point in the investigation he and Kinney basically only obtained originals of documents he already had from lawful sources. Kinney testified that he and Houle based their questioning of the dealers in part on their files which contained the illegally seized documents.

On August 5, 1981 most of the materials seized on January 9, 1980, under the invalid warrant were turned over to John Boeckler, the attorney for Ralph Alley. Ralph Alley was then facing state criminal charges, and this transfer was authorized by the state court and consented to, in writing, by Rocca. 2 Alley subsequently pled guilty to federal charges and, as part of the plea agreement, turned these documents over to the United States Attorney's office.

After she was indicted in the present case, Rocca moved to suppress both the evidence seized at her house on January 9, 1980 and that obtained later by government agents. The government conceded that the search warrant was invalid and that there was no formal justification for the January 9 search. Still, the government resisted suppression, contending that evidence seized under the invalid warrant had come back to governmental custody through lawful means, and that documents obtained after January 9, 1980 had been obtained independently of the illegal seizure. The government also defended on the ground the investigators had relied in good faith on the defective warrant. And finally, even assuming the evidence was suppressible as to the conspiracy and odometer tampering charges, the government thought it should be admissible as to the perjury counts. Agreeing with Rocca, the district court ordered the suppression of all of the materials acquired by the government both on and after January 9, 1980.

In the following discussion, we deal first with the documents illegally seized at Rocca's house on January 9, and secondly with those later acquired.

B. Materials Seized in the Course of the Illegal Search on January 9, 1980

In arguing against suppression of the materials unlawfully seized at Rocca's house on January 9, 1980, the government relies primarily upon our opinions in the related cases of Lord v. Kelley, 334 F.2d 742 The government then served McGarry with a summons for the documents. He moved to quash it. In an opinion affirming the district court's denial of relief, we noted that the court's original refusal to suppress the documents was based on a finding that the agent knew of the documents' existence and had already drafted a summons for them prior to the illegal seizure. Id. at 418. Since the summons had not been sought as a result of the illegal search, there was no reason to immunize the documents against summonsing. 344 F.2d at 419, citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). That holding was reaffirmed when McGarry appealed his criminal conviction on the basis of the admission of the once seized documents. 388 F.2d at 862.

                (1st Cir.1964), cert. denied, 379 U.S. 961, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965);  McGarry's, Inc. v. Rose, 344 F.2d 416 (1st Cir.1965), and McGarry v. United States, 388 F.2d 862 (1st Cir.1967), cert. denied, 394 U.S. 921, 89 S.Ct. 1178, 22 L.Ed.2d 455 (1969).  In those cases, an IRS agent had signed an administrative summons ordering an accountant, Lord, to hand over some of his clients' tax records.  Without serving the summons or obtaining any judicial authorization, the agent went to Lord and coerced him into turning over the records.  Lord and his clients, including McGarry, then brought an action for the return of the documents and an order for their suppression in any future proceedings that might be brought.  The district court ordered the return of the documents but refused to order their suppression, holding the petitioners had no right to be better off than they would have been had the IRS agent not acted unlawfully.   Lord v. Kelley, 223 F.Supp. 684 (D.Mass.1963).  The petitioners appealed, and we dismissed for lack of appellate jurisdiction.  334 F.2d 742 (1st Cir.1964), cert. denied, 379 U.S. 961, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965)

The McGarry cases do not dictate reversal of the suppression order here. An important factor in them was the district court's finding that the IRS knew of the records independently of the illegal search and was in the process of lawfully obtaining the documents at the time of the agent's illegal seizure. The return of the documents thus restored the status quo ante, the ultimate result being no different than had the illegal search never taken place.

Here the record did not require the court to find, and it did not find, that the government would inevitably have come to these records apart from the illegal search. While Houle had unearthed much information, it is not clear he had encountered, or necessarily would have encountered, much of the material found at Rocca's house, including the damning registry stamps and the documents linking Auto Alley to the three Vermont dealers. 3

Furthermore, unlike the situation in McGarry, the government did not regain possession of the documents by a means wholly independent of the illegal activity. The documents eventually came back to the government as the result of Ralph Alley's plea bargain--and this was the product of a criminal prosecution reinforced by the illegally seized evidence. The district court could conclude that the government regained the evidence through exploitation of the fourth amendment violation. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The government argues that the grand jury could have subpoenaed the same documents originally. But the exclusionary rule is not aborted whenever the government can show that illegally obtained evidence could have been...

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