U.S. v. Moetamedi, 36

• Citation: 46 F.3d 225
• Decision Date: 01 February 1995
• Docket Number: No. 36,D,36
• Parties: UNITED STATES of America, Appellee, v. Jafar MOETAMEDI, Defendant-Appellant. ocket 93-1567.
• Court: U.S. Court of Appeals — Second Circuit

Page 225

46 F.3d 225

63 USLW 2543

UNITED STATES of America, Appellee, v. Jafar MOETAMEDI, Defendant-Appellant.

No. 36, Docket 93-1567.

United States Court of Appeals Second Circuit.

Argued Sept. 8, 1994.

Decided Feb. 1, 1995.

Carl F.W. Adamec, Schenectady, NY, for defendant-appellant.

William C. Pericak, Asst. U.S. Atty. N.D.N.Y., Albany, NY (Gary L. Sharpe, U.S. Atty. N.D.N.Y., of counsel), for appellee.

Before: MESKILL, MAHONEY, and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Jafar Moetamedi appeals from a judgment of conviction entered July 19, 1993 in the United States District Court for the Northern District of New York, Lee P. Gagliardi, Judge, after a jury found Moetamedi guilty of two counts of possession of a controlled substance in violation of 21 U.S.C. Sec. 844. The district court sentenced Moetamedi to two months of home detention, eighteen months of probation, a $2,000 fine, a $50 special assessment, and mandatory enrollment in a substance abuse treatment program.

Moetamedi appeals his conviction on the ground that the cocaine and marijuana seized from his home pursuant to an anticipatory search warrant were improperly admitted as evidence at his trial, and presents (inter alia ) the question whether the conditions for execution of an anticipatory search warrant must be stated in the warrant itself, or may be stated only in the affidavit supporting the application for the warrant.

We affirm the judgment of conviction.

Background

On August 12, 1994, an express mail package (the "Package") addressed to 9-A Woodcliff Drive, Clifton Park, New York arrived at New York's Kennedy International Airport from Karachi, Pakistan. Upon examination, a customs officer discovered that the package contained a fifteen-inch brass plate comprised of two pieces. When the pieces were separated, they were found to contain approximately 775 grams of a black tar substance that tested positive for opium.

The matter was then referred to the Postal Service. In dealing with the Package, the postal authorities erroneously assumed that "Data Post," words written immediately above the address on the Package, was the addressee of the Package. In fact, however, Data Post is the name of an international express mail service that serves, among other countries, Pakistan. Moetamedi's name did not appear anywhere on the Package and no other person or company was listed as its addressee.

The government learned that the house at 9-A Woodcliff Drive belonged to Moetamedi, and a background check with law enforcement authorities did not reveal any prior criminal activity either by Moetamedi or at his home. Postal inspector Thomas H. Walmsley then submitted an affidavit application (the "Affidavit") to Judge Con. G. Cholakis for an anticipatory warrant to search Moetamedi's home. The Affidavit expressly conditioned the search upon Moetamedi's acceptance of the Package as an agent for Data Post. ¹ Judge Cholakis issued the requested warrant (the "Warrant"), but the Warrant, while referencing the Affidavit, did not itself express any condition to its execution. Rather, it stated in form language that probable cause had been established "to believe that the person or property so described is now concealed on the person or premises above-described."

On the morning of August 14, 1994, postal inspector Raymond J. Smith, who was familiar with the Affidavit and the other warrant application materials, posed as a mail carrier and delivered the Package to Moetamedi's home. Moetamedi agreed to accept the Package as an agent for Data Post, ² and signed two postal receipt forms as "Jafar Moetamedi." Pursuant to the condition stated in the Affidavit, government agents waited approximately fifteen minutes before executing the Warrant. They recovered, inter alia, the unopened Package, two "folds"--each containing one gram of cocaine--from Moetamedi's wallet, and a pipe that contained traces of marijuana. Moetamedi was arrested and charged with conspiracy to import opium in violation of 21 U.S.C. Sec. 963 (count one); importation of opium in violation of 21 U.S.C. Secs. 952, 960 and 18 U.S.C. Sec. 2 (count two); possession of cocaine in violation of 21 U.S.C. Sec. 844 (count three); and possession of marijuana in violation of 21 U.S.C. Sec. 844 (count four).

Moetamedi made a pretrial motion for, inter alia, suppression of the evidence seized from his home. Judge Cholakis ordered a suppression hearing, stating: "The validity of the warrant is in doubt for at least two reasons. First, the 'anticipatory' warrant does not on its face list the conditions precedent to its execution. Second, the warrant is probably overbroad." ³ Despite "the dubious validity of the warrant," however, Judge Cholakis opined that suppression could be denied if the executing agents had relied in good faith upon the warrant, which in turn "depend[ed] on whether the executing officers complied with procedures set forth in the affidavit of Inspector Walmsley."

Chief Judge Thomas J. McAvoy conducted the suppression hearing. In view of Judge Cholakis' prior opinion, Chief Judge McAvoy regarded "the question before the court [as] whether Inspectors Smith and Walmsley complied with the conditions of the warrant as stated in Inspector Walmsley's affidavit, and therefore acted in good faith." United States v. Moetamedi, No. 92-CR-411, 1993 WL 147461, at * 3 (N.D.N.Y. May 5, 1993). Chief Judge McAvoy ruled that: (1) Walmsley had not intentionally or recklessly omitted to inform Judge Cholakis that the check with law enforcement agencies had proved negative as to any criminal activity by Moetamedi, and the provision of this information would not have negated probable cause, id. at * 3; (2) the Warrant was probably overbroad, but the executing officers' reliance upon the issuing judge's determination of probable cause was reasonable, so the overbreadth did not require suppression, id. at * 3-4; and (3) the conditions for execution of the Warrant stated in the Affidavit had been satisfied, in that: (a) Smith had presented the package to Moetamedi in such a manner that Moetamedi could easily see its addressee (deemed at the time to be Data Post); (b) Moetamedi had responded that he could accept the package and had signed for it, see supra note 2; and (c) there was no evidence to suggest that Moetamedi had been duped into thinking that the Package was addressed to him personally. Id. at * 4-5. Accordingly, Chief Judge McAvoy concluded that suppression should be denied because "the officers acted in good faith in executing the warrant." Id. at * 5.

At trial, Moetamedi was acquitted on Counts one and two, and convicted on Counts three and four. This appeal followed.

Discussion

Moetamedi advances two significant issues on this appeal. First, we consider whether the failure of an anticipatory search warrant to state the conditions for its execution requires suppression of evidence seized pursuant to the warrant when those conditions are stated in the affidavit that solicits the warrant and are in fact satisfied when the warrant is executed. Second, we consider whether the Warrant was overly broad, and if so, whether suppression is the appropriate remedy.

Preliminarily, we reject Moetamedi's argument that suppression is required because the Affidavit failed to disclose that a check of law enforcement agencies regarding criminal activity by Moetamedi or at his residence had elicited negative results. See United States v. Smith, 9 F.3d 1007, 1014 (2d Cir.1993) ("An otherwise sufficient application for a search warrant need not relate unproductive or unsuccessful efforts in the course of the investigation.") (collecting cases). Nor are we concerned that the confusion about "Data Post" being the addressee of the Package somehow invalidates the Warrant, in view of Judge McAvoy's findings of fact regarding the circumstances of the delivery of the Package to Moetamedi.

We note that legal issues relating to the validity of warrants and the suppression of evidence seized thereunder are reviewed de novo. See Smith, 9 F.3d at 1011; United States v. Moore, 968 F.2d 216, 221 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 480, 121 L.Ed.2d 385 (1992); United States v. Uribe-Velasco, 930 F.2d 1029, 1032 (2d Cir.1991). We proceed to address the issues presented for our decision.

A. Statement of Conditions Precedent to the Execution of Anticipatory Warrants.

Moetamedi argues that the Warrant is invalid because the conditions precedent to its execution were not stated in the Warrant. In United States v. Garcia, 882 F.2d 699 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989), we held that anticipatory search warrants are not per se unconstitutional, reasoning that "when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant." Id. at 702; see also United States v. Ricciardelli, 998 F.2d 8, 11 (1st Cir.1993) (collecting cases); United States v. Tagbering, 985 F.2d 946, 949 n. 5 (8th Cir.1993) (collecting cases); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988) (collecting cases).

We added in Garcia, however, that "when an anticipatory warrant is used, the magistrate should protect against its premature execution by listing in the warrant conditions governing the execution which are explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents." 882 F.2d at 703-04 (emphasis added). Moetamedi invokes this statement to argue that suppression is required in this case because the conditions for execution were not stated in the Warrant, but only in the Affidavit.

The Eighth Circuit addressed this issue in Tagbering. The Tagbering court looked to the affidavit to determine whether adequate conditions were placed...