U.S. v. Merritt

• Decision Date: 22 March 2004
• Docket Number: No. 02-4211.,02-4211.
• Citation: 361 F.3d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brent E. MERRITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.3d 1005

UNITED STATES of America, Plaintiff-Appellee, v. Brent E. MERRITT, Defendant-Appellant.

No. 02-4211.

United States Court of Appeals, Seventh Circuit.

Argued October 20, 2003.

Decided March 22, 2004.

COPYRIGHT MATERIAL OMITTED

Joe Vaughn (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Stephen M. Komie (argued), Komie & Associates, Chicago, IL, for Defendant-Appellant.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge.

In this direct appeal of a judgment and sentence entered pursuant to a jury verdict, the Defendant-Appellant Brent E. Merritt seeks to have his conviction for possession of firearms and ammunition as a convicted felon under 18 U.S.C. § 922(g)(1) (2000) overturned for any of the following three reasons. First, he asserts that the district court should have suppressed evidence obtained during a search of his home pursuant to a warrant (later determined to lack sufficient probable cause to issue), rather than applying the good-faith exception to the exclusionary rule. Second, Merritt argues that the jury's verdict was not supported by sufficient evidence. And last, he challenges whether his sentence is proper because the district court considered relevant conduct only proven by a preponderance of the evidence, and not beyond a reasonable doubt. For the following reasons, all these arguments fail, and we affirm the district court's judgment and sentence.

I. History

Merritt, a convicted felon, owned Club 2001, an Indianapolis nightclub for persons under the age of twenty-one. Merritt and his family also resided in Indianapolis. During the early morning hours of December 3, 2000, a fire completely destroyed Club 2001. Merritt had insured the club for approximately $678,000. Following the fire, he "made preliminary inquiries into filing an insurance claim," although he never submitted one. The insurance company and federal, state, and local authorities investigated the fire.

A substance which accelerates the intensity and rate at which a fire spreads was found in several areas of the club. In addition, no signs of forced entry were found, and Merritt and his two sons were the only persons with keys to the club. Also, his sons provided investigators with conflicting statements about the removal of disc-jockey equipment from the club prior to the fire. This equipment was later found on January 4, 2002 in the sons' residence.

Based upon the foregoing information which aroused suspicions of arson, Bureau of Alcohol, Tobacco, and Firearms ("BATF") Agent Michael A. Vergon, with the assistance of Assistant United States Attorney ("AUSA") Joseph H. Vaughn, sought to obtain a search warrant for Merritt's residence, in part to determine through financial documents and records whether Merritt had a financial motive to commit arson.

An affidavit and application for a search warrant were submitted on January 22, 2001 to a United States magistrate judge. In the affidavit, Agent Vergon provided the incident information, as well as the following: he had twelve years of experience with the BATF, including some arson investigations; Club 2001 closed at approximately 1:30 a.m. the morning of the fire; Merritt used an accountant as a bookkeeper for Club 2001 and to prepare tax returns; and Merritt's wife provided the accountant with various documents and records, including documents prepared on a computer in Merritt's home. The magistrate judge found that the affidavit established probable cause and issued a warrant to search Merritt's residence for financial or other documents and records that could reveal a motive for arson. The search warrant was executed on January 23, 2001.

While searching Merritt's residence, law-enforcement officers, including Agent Vergon, discovered a vault located in the basement of the home. After Merritt informed Agent Vergon that the items in the vault were not his and that he could not gain entry, Mrs. Merritt opened the vault. The agents discovered numerous firearms, ammunition, and various firearm attachments. Agent Vergon then obtained a second search warrant to search the Merritt residence for firearms. In addition to the firearms, other items were found in the vault, including glamour shots of Mrs. Merritt, photographs of nude and partially nude women, one of which was signed, "Brent, Lustfully Yours," three photo identifications of Merritt, and several pieces of mail addressed to Brent Merritt. The execution of this search warrant resulted in the confiscation of seventy-three firearms and many rounds of ammunition from the vault. In addition, one shotgun was found in a concealed office in the basement of the residence.

Consequently, in August of 2001, Merritt was indicted with possession on or about January 23, 2001, of approximately seventy-four firearms and numerous rounds of ammunition by a convicted felon (Count 1), and possession on or about January 23 and continuing through on or about June 12, 2001, of two firearms, a machine gun, and a silencer by a convicted felon (Count 2), in violation of 18 U.S.C. § 922(g)(1). On September 25, 2001, Merritt moved to suppress the fruits of the search of his residence, alleging that the affidavit supporting the search warrant lacked probable cause and that the good-faith exception to the exclusionary rule should not apply. Specifically, he argued: (1) the affidavit signed by Agent Vergon in support of the warrant intentionally or recklessly included false statements and/or omitted material facts, negating the magistrate's finding of probable cause, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); or, if this first argument were to fail, then (2) the good-faith exception to the exclusionary rule nonetheless could not apply because a reasonably well-trained officer would have known that the warrant lacked probable cause despite a neutral and detached magistrate's authorization, see United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Based upon either argument, Merritt asserted, the search violated the Fourth Amendment to the United States Constitution. The district court conducted a suppression hearing on December 20 and 21, 2001.

Following the hearing, in January of 2002, the district court issued an Order setting out three key findings. First, the court determined that Agent Vergon had not made a false statement, nor omitted material facts from the affidavit, either intentionally or with reckless disregard of the truth. Second, because nothing on the face of the affidavit indicated that the financial records sought would reveal the Merritts to be in financial distress, the court concluded that the affidavit failed to allege probable cause. And third, the court held that Agent Vergon acted with good faith in executing the warrant. Hence, the court denied Merritt's motion to suppress.

Following a jury trial which lasted from July 8 to July 12, 2002, Merritt was found guilty of Count 1 and acquitted of Count 2. During Merritt's sentencing hearing on November 27, 2002, the district court concluded by a preponderance of the evidence that, for the count of conviction, Merritt possessed more than twenty-five, but less than 100, firearms. The court therefore applied a six-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(1)(C) (2003), resulting in a total offense level of twenty-eight. As a result, Merritt was sentenced to 108 months incarceration, three years supervised release, and a $37,500 fine.

II. Analysis

A. Motion to Suppress Evidence

Merritt first argues that the district court erred when, following the hearing on December 20-21, 2001, it denied his motion to suppress the fruits of the January 23 search of his home. He asserts that the search was in violation of his Fourth Amendment rights. The Fourth Amendment protects against "unreasonable searches and seizures" and generally requires that a law-enforcement officer have probable cause before making an arrest or conducting any search. U.S. Const. amend. IV. When evidence is obtained in violation of the Fourth Amendment, the exclusionary rule precludes the use of such evidence and its fruits in criminal proceedings against the victim of the violation. See United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). However, it is not a personal constitutional right of the aggrieved party; rather, it is "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect." Id. at 348, 94 S.Ct. 613.

The exclusionary rule has such a deterrent effect when, by "punishing [] behavior [which violates a citizen's Fourth Amendment rights] and removing the incentive for its repetition," United States v. Espinoza, 256 F.3d 718, 724 (7th Cir.2001), cert. denied, 534 U.S. 1105, 122 S.Ct. 905, 151 L.Ed.2d 873 (2002), it "alter[s] the behavior of individual law-enforcement officers or the policies of their departments," Leon, 468 U.S. at 918, 104 S.Ct. 3405. The exclusionary rule should not be applied, therefore, when its application will not result in "appreciable deterrence." See Leon, 468 U.S. at 909, 104 S.Ct. 3405 (quoting United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)). Evidence obtained pursuant to a facially valid search warrant later found to be unsupported by probable cause should be suppressed only if "the magistrate abandoned his detached and neutral role,... the officers were dishonest or reckless in preparing their affidavit, or could not have harbored an objectively reasonable belief in the existence of probable cause." Leon, 468 U.S. at 926, 104 S.Ct. 3405. And conversely, evidence should not be suppressed if an officer acted with objective good faith, obtained the search warrant from a neutral and detached magistrate, and acted within its scope, since the exclusion of evidence could have no affect on police conduct. Id. at...