U.S. v. Kepner
| Decision Date | 01 April 1988 |
| Docket Number | No. 88-5123,88-5123 |
| Citation | 843 F.2d 755 |
| Parties | 108 Lab.Cas. P 10,422 UNITED STATES of America, Appellant, v. Thomas KEPNER and Mary Brown. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph A. Hayden, Jr. (argued), Alan Silber, Merrill N. Rubin, Paulette L. Pitt, Hayden, Perle & Silber, Hoboken, N.J., for appellee Mary E. Brown.
Edward J. Plaza, Vernon and Aaron, Shrewsbury, N.J., for appellee Thomas F. Kepner.
Paul J. Fishman (argued), Samuel A. Alito, Jr., Edna Ball Axelron, Alicia Olivera Valle, U.S. Attys., Newark, N.J., for appellant.
Before STAPLETON, MANSMANN and HUNTER, Circuit Judges.
In this appeal, the United States seeks reversal of two pre-trial orders of the district court suppressing certain physical evidence, as well as live testimony in the prosecution of appellees Thomas Kepner and Mary Brown. Kepner and Brown, along with four co-defendants, 1 were charged in a 32-count indictment with violations of the RICO Act, 18 U.S.C. Sec. 1962(c), (d), and also with the substantive offenses constituting the predicate acts. The district court suppressed various pieces of physical evidence because they were discovered under an overbroad search warrant and because they were not in plain view during the course of the search as authorized by a properly redacted warrant. The court suppressed the testimony under the "fruit of the poisonous tree" doctrine, as the witness whose testimony was suppressed was discovered because of the illegal seizure of physical evidence. Implicit in both of these suppression orders was a finding that the search had not been conducted in good faith reliance on the validity of the search warrant. For the reasons stated below, we reverse both suppression orders.
As part of a continuing investigation into labor racketeering, on April 17, 1986, Special Agent Ronald Chance applied for a warrant to search Unit # 506, Harbor Cove, 550 Bay Avenue, Somers Point, New Jersey ("the condominium"). The application and accompanying affidavit alleged According to the affidavit, Agent Chance had learned that CGS had paid $130,000 to a consulting firm named Metro Atlantic Corp. Metro Atlantic had in turn paid money to its only three employees, one of them being Mary Brown. Finally, surveillance had shown that Kepner and Brown were frequent companions, spending about five hours a day together at the Harbor Cove condominium. Kepner and Brown had been observed entertaining some of Kepner's relatives at the condominium. Based on these allegations, Agent Chance concluded that a search of the condominium would discover evidence of an illegal relationship between Kepner and Brown, and between the two of them and the companies.
probable cause to believe that the condominium contained evidence of violations of the Taft-Hartley Act, 29 U.S.C. Sec. 186, and the mail fraud statute, 18 U.S.C. Sec. 1341. Specifically, the affidavit described a scheme whereby money and other benefits were illegally being transmitted to Kepner from CGS, Inc. an employer of members of Local 350 of the International Association of Bridge, Structural, and Ornamental Iron Workers ("Local 350"). Such a scheme is explicitly prohibited by the Taft-Hartley Act. See 29 U.S.C. Sec. 186(a)(2), (b)(1). 2
Chance's affidavit read, in relevant part:
24. Further, I have probable cause to believe that such search will result in the seizure of personal items of Kepner such as clothing, documents, records, diaries, and correspondence that establish his use and control of the condominium unit as well as his illegal receipt of the prohibited benefits.
Appendix at 53. The accompanying application form, however, used somewhat broader language, referring merely to the "documents, records and personal effects of Thomas Kepner, Mary Brown, and Robert Brown." Appendix at 43 (). The magistrate discussed each paragraph of the affidavit with Chance before issuing the warrant, but in issuing it, he incorporated the broader language of the application rather than that of the affidavit. See Appendix at 41.
Chance led a team of officers in executing the warrant on April 22, 1986. The search team did not have a copy of Chance's affidavit with the warrant, but according to his testimony at the suppression hearing, Chance told the members of the search team that they were to look for evidence showing a relationship between Kepner and Brown or a relationship between the couple and the two companies. Further, Chance instructed the officers to notify him if they found anything which they thought to be covered by the warrant so that Chance could examine it and determine whether it could properly be seized. Appendix at 123.
During the search, Chance found documents relating to the ownership of the condominium. These documents led Chance to believe that Kepner and Brown were residing in an apartment in which Kepner had an illegal joint interest with an employer of Local 350 members. Appendix at 200-01, 221.
Later, while searching through a drawer of Mary Brown's bureau, Chance discovered an envelope addressed to Charles Cornell. The envelope, which had a floral pattern on the back, was addressed:
Mr. Charles Cornell
935 Ocean Avenue
# 419
The postmark on the envelope was dated June 23, 1980. Inside this envelope was another envelope, with the same floral pattern, addressed to "Mary and Tom"; this second envelope contained a handwritten note from Brown's mother, which was signed "Love Always, Mom." Appendix at 408-12. Chance knew that Cornell was the head of a steel company employing members of Local 350. Having already come to suspect an illegal joint interest in one apartment, Chance decided to open the envelope and seize it and the documents enclosed About a year after the search of the condominium, a Labor Department agent went to the address on the envelope bearing Cornell's name. The agent learned that Cornell had rented the apartment. Later still, on June 4, 1987, Chance went to interview Cornell and serve him with a grand jury subpoena. Cornell asked about his status, and Chance responded that he was not a target of the investigation. Cornell, who said he had already learned of the investigation from a union official, asked if the investigation concerned the "Christmas collection." Chance answered that the investigation related to payoffs to Kepner "both in the form of cash and by providing free services for him, namely providing free condos or apartments for Kepner's girlfriend." Appendix at 414. Cornell did not respond to this, but as Chance was leaving, Cornell remarked: "So, he's going to ask me about the apartment." Cornell provided little information during the interview, and indicated that he might invoke his right to silence before the grand jury. At no time during the interview did Chance mention the envelope found in the condominium, nor did he show it to Cornell.
as evidence of a similar Taft-Hartley violation. Appendix at 218-21.
Cornell testified before the grand jury on June 10, 1987. After being informed of his constitutional rights, Cornell did not invoke his right to remain silent. Instead, he admitted that he had provided a rent-free apartment to Kepner and Brown between 1979 and 1981. He stated that Kepner had in 1979 asked Cornell to rent an apartment for Brown, and that he had done so, paying approximately $16,000 in rent over a three-year period. He also stated that Kepner never reimbursed him for the rent, and he also identified his own signature on copies of the apartment leases. As a result of this testimony, one of the predicate acts charged in the RICO counts of the indictment against Kepner and Brown was their receipt of the free apartment in violation of the Taft-Hartley Act.
Kepner and Brown were charged in a 32-count indictment with racketeering and conspiracy to commit racketeering, 18 U.S.C. Sec. 1962(c), (d). Specifically, the indictment alleged a conspiracy to conduct the affairs of Local 350 through a pattern of violations of the Taft-Hartley Act, 29 U.S.C. Sec. 186, in which various employers of Local 350 members made illegal payments to Kepner, who was the union's treasurer. In addition, the indictment alleged the obstruction of justice by various defendants, and also included counts charging substantive offenses through the commission of the acts predicate to the RICO counts.
On November 18, 1987, Kepner and Brown moved to suppress evidence seized pursuant to the warrant authorizing the search of the condominium. The warrant had authorized a search for the records of two companies, Metro Atlantic Corp. and CGS, Inc., as well as the "documents, records, and personal effects of Thomas Kepner, Mary Brown and Robert Brown." Appendix at 41. On December 28, 1987, the district court ruled that the warrant was overbroad, and redacted the warrant to exclude the language quoted above. Appendix at 55-97. During a colloquy following this ruling, counsel for the Government indicated that it might want to appeal. Appendix at 67.
Following this ruling, the court held hearings to determine whether specific pieces of evidence seized at the condominium should be suppressed. By order dated January 28, 1988, the court ruled that certain pieces of evidence had been properly seized under the redacted warrant. Certain other pieces of evidence, although outside the scope of the redacted warrant, were held to have been properly seized as being in plain view during the properly conducted portions of the search. Finally, the court suppressed certain items as being neither within the scope of the redacted warrant nor in plain view at the time of the search. One of the items suppressed in this order was Exhibit 406, the envelope addressed to Cornell found in a drawer of Mary Brown's bureau. Following...
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