U.S. v. Pritchard

• Decision Date: 04 October 1984
• Docket Number: No. 83-1763,83-1763
• Citation: 745 F.2d 1112
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter PRITCHARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1112

745 F.2d 1112

UNITED STATES of America, Plaintiff-Appellee, v. Walter PRITCHARD, Defendant-Appellant.

No. 83-1763.

United States Court of Appeals, Seventh Circuit.

Argued May 8, 1984.

Decided Oct. 4, 1984.

Daniel A. Dupre, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Donald T. Bertucci, Chicago, Ill., for defendant-appellant.

Before WOOD and ESCHBACH, Circuit Judges, and KELLAM, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Appellant Walter Pritchard was convicted in a bench trial of three counts (Counts I, III, and IV) relating to the unlawful possession of firearms in violation of 18 U.S.C. Sec. 1202(a)(1) and 26 U.S.C. Sec. 5861(d), and one count (Count II) relating to the unlawful possession of electronic equipment designed to be used primarily for the surreptitious interception of wire and oral communications in violation of 18 U.S.C. Sec. 2512(1)(b). The district judge sentenced appellant to two years imprisonment on Counts II, III, and IV, the sentences to run concurrently, and imposed two years probation on Count I. On appeal, appellant argues that the affidavit presented to the magistrate for issuance of the search warrant contains numerous allegations which were known to be false or were included in the affidavit with reckless disregard for the truth. Appellant contends, therefore, that the magistrate and the trial judge erred in denying appellant's motion for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Appellant also argues that the affidavit provided an insufficient basis for finding probable cause to issue the search warrant for his residence and that the district court erred in denying his motion to quash the warrant. Finally, appellant maintains that the evidence at trial was insufficient to convict him beyond a reasonable doubt on all counts. We affirm.

I.

We begin by summarizing the relevant evidence presented by the government, since it is the value and sufficiency of the government's evidence that appellant challenges. In early 1981, the FBI began an investigation of appellant's activities. As part of this investigation, the FBI undertook surveillance of appellant and relied on the services of two informants. One of the surveillances occurred on February 14, 1981, when Agents Bogan and Murray of the FBI entered a Chicago tavern to observe appellant. After about half an hour, appellant approached the agents and struck up a conversation with them. According to Agent Bogan, appellant introduced himself as "Wally the Wiretapper" and claimed he was the second best wiretapper in Chicago. During the ensuing conversation, appellant allegedly boasted of his talents as a wiretapper and represented that he was presently available for wiretapping or similar services. He also stated that he owned a gun but did not have one on him at the time.

In addition to undertaking further surveillance of appellant from late January to early March, the FBI used two informants as contacts with appellant. One of the informants, whose identity was revealed as John Forbes, testified at trial. Forbes stated that he first met with appellant and a third party at a restaurant on March 7, 1981, at which time Forbes wore a body recorder to record their conversation. During their conversation, appellant discussed the monitoring of radio frequencies used by various law enforcement agencies in the greater Chicago area, and talked about various firearms and attachments he possessed and could procure. Forbes removed the body recorder after leaving the restaurant because appellant had mentioned that he owned a device capable of detecting within a certain area whether anyone was wearing electronic eavesdropping equipment. The three men thereafter went out to appellant's van, where Forbes observed three different sized cases. According to Forbes, the largest case contained electronics equipment used to circumvent alarm systems and to check line monitoring, meters, and alligator clips. In one of the other cases he saw a short barreled shotgun and an automatic pistol with a silencer.

Forbes met with appellant again on March 10, 1981. Forbes again taped their conversation, during which appellant told Forbes of a burglary he had committed in which he posed as a deliveryman to gain access to the residence. He also stated that the only time he carried a gun was when he entered the premises to be burglarized. At other points in their conversation appellant talked about how he used silencers, sometimes to "waste" dogs during robberies, how he had tools for stealing cars, and how he had stolen but "cleaned up" his van.

Based on this information and other information obtained through FBI surveillances and informant # 1 (whose identity has remained confidential), the FBI received warrants to search appellant's residence in Chicago and his van. The search of the residence, as stated in the warrant, was to be directed toward the discovery of

an electronic device known as a "blue box" used to circumvent long distance telephone call toll charges, which is actually black in color, approximately "palm-size," made of plastic, and has switches on top, which is a fruit, instrumentality, and evidence of violations of Title 18, United States Code, Section 1343 (wire fraud); and electronic wiretapping equipment, including electronic meters and devices resembling telephone receivers, which are fruits, instrumentalities, and evidence of violations of Title 18, United States Code, Section 2512(1)(b) (possession of wire communications intercepting devices).

On March 16, 1981, several agents of the FBI executed the search of appellant's residence. The entire search lasted approximately three hours. During the course of that search, the agents forced open a locked suitcase containing two pistols, a silencer, a short barreled shotgun, ammunition, handcuffs, and disguises. The agents also seized several electronic devices. The government's expert witness at trial, Agent Wilmore, described government exhibit 11 as a briefcase containing a tape recorder, an amplifier, a voice activation unit, a power source, and various patch cords. A microswitch was built into one of the latches of the briefcase, and a microphone was concealed in the briefcase handle. Agent Wilmore testified that when the tape recorder is connected to the microphone and placed in the record mode, and the briefcase latch is opened to activate the recorder, the device is capable of recording room conversations. He also stated that the voice activation unit in the briefcase could be adjusted so that the tape recorder would operate only when the microphone is actually picking up sounds. In Agent Wilmore's opinion, this system was one designed primarily for surreptitiously recording conversations.

Agent Wilmore also described government exhibit 12, which consisted of a briefcase with a built-in FM radio receiver and loop antenna, and a headphone for the radio receiver and a telescoping antenna. The radio receiver was set to pick up signals transmitted only at a frequency of 38.45 megahertz, which falls within the lower FM band corresponding to public service broadcasts rather than normal FM commercial broadcasts. Communications received through the receiver could be heard over the receiver's own speaker or through the headphones; they could also be played into the tape recorder found in government exhibit 11. Agent Wilmore testified that he could not say that the unit as found was one designed for surreptitious interceptions of communications. He did state, however, that certain metal studs on the tape recorder could be removed, and the recorder would then fit into the briefcase of government exhibit 12. The system would then function as one whose primary purpose was the surreptitious interception of communications, so long as an item found in the briefcase believed by Agent Wilmore to be a radio transmitter actually functioned as one. However, Agent Wilmore was unable to activate the alleged transmitter.

Finally, Agent Wilmore described government exhibit 13. This exhibit consisted of an attache case with a built-in FM radio receiver, a telescoping antenna, a concealed microphone on each of two sides near the top of the case, and a magnetic switch under the handle, which could supply power to the radio receiver when the handle of the case was placed in a certain position. The system could receive FM signals through the radio receiver or amplify audio signals received through the microphones. Agent Wilmore testified that if the tape recorder found in government exhibit 11 were placed inside the case and connected to the radio to record room conversations, the unit would be a device primarily useful for the surreptitious interception of communications.

Prior to trial, appellant filed a variety of motions, including a motion for a Franks hearing and a motion to quash the search warrant of his residence. A magistrate denied appellant's motion for a Franks hearing and recommended that the motion to quash be denied. The district court undertook a de novo consideration of appellant's motion to quash and decided to accept the recommendation of the magistrate in its entirety. Appellant waived his right to a jury trial, and on February 24, 1983, the trial judge found appellant guilty on all counts. This appeal followed.

II.

A. Franks Hearing.

Appellant first contends that under the holding of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), he was entitled to a full evidentiary hearing on his motion to quash and suppress evidence. In Franks, the Supreme Court held that the fourth amendment requires an evidentiary hearing into the truthfulness of the allegation contained in an affidavit supporting an application for a search warrant "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless...