U.S. v. Miller

• Decision Date: 28 August 1986
• Docket Number: No. 85-2647,85-2647
• Citation: 800 F.2d 129
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 129

800 F.2d 129

55 USLW 2155

UNITED STATES of America, Plaintiff-Appellee, v. Ralph MILLER, Defendant-Appellant.

No. 85-2647.

United States Court of Appeals Seventh Circuit.

Argued May 30, 1986.

Decided Aug. 28, 1986.

Julius J. Echeles, Chicago, Ill., for defendant-appellant.

Patrick J. Foley, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, FLAUM, and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

The defendant Ralph Miller was a chiropractor, and owner of a clinic in Chicago, who was convicted of devising a scheme to defraud several insurance companies by submitting false and inflated medical reports and bills for people treated at the clinic. There are two questions on appeal. The first is whether the trial court erred in denying the defendant's motion to suppress a group of business and medical records the government seized from the clinic. The second question on appeal concerns the prosecution's allegedly unfair and improper cross-examination of a defense witness. We find no merit in either of the defendant's allegations and thus affirm the rulings of the district court.

I.

The only facts relevant to this appeal concern the business records of the Associated Physicians Clinic, which was owned solely by the defendant Ralph Miller, and the cross-examination of the witnesses at Miller's criminal trial.

At various times the Associated Physicians Clinic had offices at three different locations in Chicago. While Miller kept business records at all three locations, the records were frequently moved between offices. Those records consisted of patient medical history and treatment cards, medical bills, medical reports prepared from the treatment cards, patient sign-in log books, X-rays, and bank records (including employee payroll receipts, check stubs, and deposit slips). The district court found that all of the employees of the clinic had access to all of these records. None of the records were maintained in private or restricted areas.

The district court made the following findings of fact concerning Julio Rodriguez's use of those business records:

5. Julio Rodriguez was employed by Miller to work at the 63rd Street Clinic from 1972 through 1980. Rodriguez worked as an X-ray technician but also performed the following duties with Miller's knowledge and consent:

Shared supervision of the patient sign-in log book;

Prepared and stamped the medical cards Performed examinations, blood tests, X-rays, EKG's, pregnancy tests;

Deposited and cashed checks at the bank;

Moved records from 505 North LaSalle Street to 63rd Street; and

Consulted medical records of 63rd Street and 505 North LaSalle Street when necessary in performing his other job duties.

6. Miller gave Rodriguez keys to the 63rd Street Clinic when Rodriguez was first employed. In July of 1980 Miller knew Rodriguez had those keys and used those keys. Rodriguez would open and close the clinic on his own. Rodriguez had Miller's permission to be in the clinic by himself. Miller gave Rodriguez permission to use all records in the clinic. Rodriguez had access to the entire premises of the clinic.

7. During 1979, Rodriguez learned, upon reading a newspaper story written by Gene Mustain, that Miller was being investigated. After reading the story, a police officer acquainted with Rodriguez contacted him. In the summer months of 1979, the officer told Rodriguez that Gene Mustain was doing an investigative report on Dr. Miller's clinics and asked Rodriguez to meet with Mustain. Rodriguez agreed and met, on one occasion, with Mustain at the officer's home. Mustain asked Rodriguez questions concerning Miller's clinic and Rodriguez answered. Mustain also urged Rodriguez to contact Postal Inspector Mason and give Mason this same information. Rodriguez agreed to speak with Mason.

8. Rodriguez first met Mason a short time later during a visit by Mason and other postal inspectors to the 63rd Street Clinic. The inspectors spoke with all staff members present in the clinic that day, asking them to cooperate in the investigation and discussing each staff member's duties. Mason and Rodriguez agreed to meet at Rodriguez' home. In late 1979, Mason came to Rodriguez' home with another postal inspector and asked questions regarding Miller's clinic, which Rodriguez answered. Subsequently, Mason telephoned Rodriguez on two other occasions to ask if any significant changes had taken place at the 63rd Street Clinic. Although Rodriguez agreed to respond to the government's investigation of Miller, he was never paid by the government, promised payment or expected any payment.

9. On July 14, 1980, Miller came to the 63rd Street Clinic where the business records were stored. Miller asked Rodriguez to store some of these records at Rodriguez' own home. Rodriguez refused to do so. At that time Miller took a small group of business records out of the clinic, as he usually did on visits to 63rd Street. Miller also told Rodriguez that "he had to remove [the records] from the [63rd Street Clinic] as soon as possible so that the authorities would not get a hold of them."

10. After Miller left the clinic with the records, Rodriguez called Inspector Mason and told him "that if he wanted the records, to come and get them, because Dr. Miller intended to remove them from the premises." Rodriguez told Inspector Mason to "have a subpoena for the records" because "we were responsible ... for them ... and since I didn't want to be blamed by anyone."

11. On July 15, 1980, Inspector Mason went to the 63rd Street Clinic and served a subpoena on Julio Rodriguez. The subpoena was issued to "Dr. Ralph Miller or Custodian of Records" and called for various records "relating to the treatment of any patients by Dr. Miller."

12. On July 15, 1980, Rodriguez was Miller's sole employee at the 63rd Street Clinic. Miller knew that Rodriguez was the only person working at the 63rd Street Clinic at that time.

13. In response to Mason's question, Rodriguez told Mason that he was the custodian of records. He had been the only employee working at the Clinic for several weeks.

14. Rodriguez also told Mason that Mason could take business records and remove them from the 63rd Street Clinic.

Mason removed the business records at that time. Rodriguez made no effort to insure that the records taken were within the terms of the subpoena. However, because of the broad language of the subpoena and the nature and volume of the records, any effort to examine the records individually would not have been feasible. Nor was Rodriguez' consent to the removal of the records tied to the subpoena, since Rodriguez would have turned the records over "with or without the subpoena."

15. Prior to July 15, 1980, a Grand Jury subpoena for business records was served on Ralph Miller personally. That subpoena called for production of the records of 22 different doctors, including Ralph Miller. At a hearing held on May 27, 1980 on the scope of that subpoena, Chief Judge Parsons suggested a clarification of the subpoena and denied the motion to quash with the provision that the government make more specific what information relating to the 22 listed doctors the government was seeking from Ralph Miller. Chief Judge Parsons also rejected a tentative Fifth Amendment argument offered by Miller, stating that business records are not privileged.

The district court then denied the defendant's motion to suppress because Rodriguez was the only employee at the clinic for more than two weeks before the records were turned over. The court below found that "Miller expressly placed all records located at the 63rd Street Clinic into Rodriguez' custody by asking Rodriguez to aid him in his efforts to remove and conceal or destroy records." The court found the subpoena served on Rodriguez met Judge Parsons' guidelines and while Rodriguez initiated the removal of records, the court below found that he was not acting as an informant for hire or at the government's direction.

The defendant was then convicted of thirteen counts of mail fraud and this appeal followed.

II.

To determine whether Miller's Fourth Amendment right was violated we need only determine whether Rodriguez was a "custodian of records" that the government sought to obtain through their second subpoena. That determination is inherently factual, and thus the trial court's ruling on the motion to suppress should not be overturned unless it is clearly erroneous. United States v. Santucci, 674 F.2d 624, 631 (7th Cir.1982). It also raises interesting and important questions concerning an agent's actual and apparent authority.

As a general rule, all the government must show is that the alleged "custodian of records" had apparent, opposed to actual, authority to dispose of the records. This is a clear corollary of the principle that whether a search is "reasonable" under the Fourth Amendment depends on what the police know, not on whether what they know turns out to be true. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Cf. Scott v. United States, 436 U.S. 128, 135-39, 98 S.Ct. 1717, 1722-24, 56 L.Ed.2d 168 (1978) (test under the Fourth Amendment is objective). If all the facts known to the police suggest that the person claiming to be a custodian of the records had sufficient authority, then the court should not suppress that evidence voluntarily given to the police.

For example, if a person who ought to know had told the police in this case that Rodriguez was the custodian of the clinic's records, and everything about Rodriguez lent credence to that impression, then there is no ground on which to suppress the evidence even if Rodriguez actually used the documents less frequently than everyone thought he did. The police may not accept only Rodriguez' bald assertion that he is a custodian, but must make a reasonable inquiry concerning the objective factors (that we will discuss later) that make up an actual "custodian of...