U.S. v. McClintock

Decision Date05 December 1984
Docket NumberNo. 82-1480,82-1480
Citation748 F.2d 1278
Parties15 Fed. R. Evid. Serv. 1472, 17 Fed. R. Evid. Serv. 262 UNITED STATES of America, Plaintiff-Appellee, v. Harold S. McCLINTOCK, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John D. Lyons, Jr., Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Larry L. Debus, Debus, Bradford & Kazan, Phoenix, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before KILKENNY, Senior Circuit Judge, SKOPIL and FERGUSON, Circuit Judges.

SKOPIL, Circuit Judge:

Harold S. McClintock appeals his conviction of four counts of mail fraud and aiding and abetting, 18 U.S.C. Sec. 1341 and Sec. 2; two counts of wire fraud and aiding and abetting, 18 U.S.C. Sec. 1343 and Sec. 2; and two counts of interstate transportation of money taken by fraud and aiding and abetting, 18 U.S.C. Sec. 2314 and Sec. 2. We reverse as to three counts and affirm as to the others.

BACKGROUND

McClintock was indicted for mail fraud, wire fraud, interstate transportation of money taken by fraud, and use of a false name. The indictment arose out of DeBeers Diamond Investment, Ltd. ("DDI") selling gemstones to customers through the mails and by telephone during the years 1974 through 1978.

In essence, the indictment alleged that McClintock, through DDI, engaged in a fraudulent scheme to sell these gemstones. 1 McClintock represented himself as a "consultant" of DDI. He was not designated as a director, officer, or stockholder. Evidence at trial, however, revealed that employees of DDI viewed McClintock as the head of the company. Following trial, McClintock was convicted of eight of the charged counts.

ISSUES

1. Did the search warrant describe the items to be seized with sufficient particularity?

2. Did the government engage in misconduct sufficiently serious to violate McClintock's constitutional rights or to require reversal under the court's supervisory powers?

3. Was McClintock's prior conviction time-barred and thus improperly admitted?

4. Did the trial court improperly limit cross-examination?

5. Did the district court deny McClintock his sixth amendment right to confront his accusers?

6. Was there a non-unanimous verdict?

DISCUSSION
1. The Search Warrant.
A. Standard of Review

We conduct a de novo review of search warrants that are challenged for failing to particularly describe the items to be seized. See, e.g., United States v. Gomez-Soto, 723 F.2d 649, 652-54 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984); United States v. Cardwell, 680 F.2d 75, 77-78 (9th Cir.1982).

B. Analysis

In September 1978 the premises of DDI were searched pursuant to a warrant which permitted the seizure of:

Diamonds, emeralds, sapphires, rubies, and other gemstones, as well as books, records, notes, memoranda, telephone records, client lists, purchasers, and prospective purchasers, appraisals, and any and all items referring to the sale of diamonds and other gemstones which are evidence of a violation of Title XVIII, United States Code, Secs. 1342 and 1343.

McClintock contends that the warrant failed to describe with sufficient particularity the items to be seized.

The fourth amendment requires that a warrant must "particularly describ[e] the place to be searched and the person or things to be seized." U.S. Const. Amend. 4. Therefore, "general warrants" are prohibited. This is intended to prevent "a general, exploratory rummaging in a person's belongings." Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971)). This particularity requirement "prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is [to be] left to the discretion of the officer executing the warrant." Cardwell, 680 F.2d at 77 (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)).

McClintock relies primarily on United States v. Drebin, 557 F.2d 1316 (9th Cir.1977), reh. aff'd in part, rev'd in part on other grounds, 572 F.2d 215 (9th Cir.), cert. denied, 436 U.S. 904, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978). In Drebin we invalidated a broadly worded warrant. We reasoned that "[t]he warrant provided no guidelines for the determination of which films had been illegally reproduced." Id. at 1323. In United States v. Offices Known as 50 State Distributing Co., 708 F.2d 1371 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1272, 79 L.Ed.2d 677 lead source material, invoices, sales orders, order forms, ... United States Postal Service Money Orders, United States Postal Service C.O.D. firm mailing records, and other evidence and instrumentalities for numerous on-going violations of Title 18, United States Code, Sections 1341 (Mail Fraud), 1342 (Fictitious Names), and 371 (Conspiracy).

(1984), however, we upheld a warrant authorizing the seizure of:

Id. at 1372.

The outcome of these two cases differed because the facts differed. In Drebin, the warrant failed to describe with particularity the property to be seized, labeling it only "illegally reproduced and stolen copies of ... films ...; books, records, papers and other documents ... which are the fruits and instrumentalities of violations of [18 U.S.C. Secs. 371 and 2314]" (id. at 1322); the warrant thus impermissibly authorized a "general search" unsupported by probable cause. In 50 State, however, the warrant described with particularity each item to be seized but described many, many items (id. at 1374), and it "was justified by the breadth of probable cause [established by the] affidavit." Id.

The facts of the present case are more similar to 50 State than to Drebin. Here, the affidavits that the district court considered in granting the search warrant provide probable cause to seize all the items listed in the warrant, and describe with particularity each of the items subject to seizure. For example, the affiants provide probable cause to seize the gems that were the subject of DDI's alleged fraud. They state that: (1) the gems were industrial quality, but were represented as high quality; (2) the gems on DDI's premises often bore no relation to the fictitious gems the DDI salespersons claimed to have in their vault; (3) all the DDI gems were located on a tote board in the plans room; and (4) the seizure was necessary to compare DDI's appraisals with independent appraisals. Similarly, the affiants provide probable cause to seize the business' telephone records, because the affiants state that telephone solicitation of potential customers was DDI's principal means of accomplishing his alleged fraud. The scheme to defraud is described in detail and supported by numerous statements from within and without the business. The fraud is described as follows:

One, that the solicitation and sale of precious stones to customers via the telephone and mail wherein DeBeers did not have possession, ownership, nor [sic] control over the gemstones sold. Two, that those persons actually receiving the gemstones also received an appraisal indicating values far in excess of the true worth of the stones.

Swayze affidavit, pp. 2-3. The description is supported by: (1) several customers' anecdotal complaints; (2) the follow-up survey of DDI's customers from 1976 through 1978; (3) independent reappraisals of gems originally appraised under the auspices of DDI; (4) revealing statements of a top DDI salesperson and of a DDI account executive; and (5) the affiant's own test purchase of some gems. Thus, the affidavits in this case provide probable cause to seize all that is described, and the descriptions are particular enough to identify all items subject to seizure.

2. Governmental Misconduct.
A. Standard of Review

Because the separation of powers doctrine "mandates judicial respect for the independence both of" the prosecutor and the grand jury, United States v. Sears, Roebuck & Co., Inc., 719 F.2d 1386, 1391 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984), our review of an indictment is limited. "[A]n indictment may be dismissed only in 'flagrant case[s]' of prosecutorial misconduct." Id. (quoting United States v. Kennedy, 564 F.2d 1329, 1338 (9th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978)). We will not hold "prosecutorial discretion" to be violative of due process "unless it is abused to such an extent as to be arbitrary and capricious." United States v. Samango, 607 F.2d 877, 881 (9th

                Cir.1979) (quoting United States v. Welch, 572 F.2d 1359, 1360 (9th Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978)).  There must be "a clear basis in fact and law" for a court to invoke its supervisory powers to dismiss an indictment.   United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977);  but see Sears, Roebuck, 719 F.2d at 1391, n. 6
                
B. Bankruptcy Records

McClintock was first indicted in June 1979. About that time DDI was undergoing bankruptcy proceedings. The bankruptcy court granted the government's motion for an order directing the bankruptcy trustee to turn over all of DDI's books and records to the United States Attorney. On July 25, 1979 the government wrote to defense counsel and invited them to inspect DDI's records, stating there was "potential Brady material in these records." The district court subsequently dismissed the initial indictment without prejudice, finding the government failed to abide by an agreement to disclose "ten files" of other exculpatory material to the grand jury.

The government then invited the defendants to submit exculpatory evidence for possible presentation to a second grand jury. In response, the defendants sought access to DDI's books...

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