U.S. v. Romero

• Decision Date: 16 August 1978
• Docket Number: Nos. 77-2964,77-2969,s. 77-2964
• Citation: 585 F.2d 391
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Margarito O. ROMERO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Hugo Frederic FORSTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 391

585 F.2d 391

UNITED STATES of America, Plaintiff-Appellee, v. Margarito O. ROMERO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Hugo Frederic FORSTER, Defendant-Appellant.

Nos. 77-2964, 77-2969.

United States Court of Appeals,

Ninth Circuit.

Aug. 16, 1978.

Rehearing and Rehearing En Banc Denied Nov. 3, 1978.

Ephraim Margolin (argued), San Francisco, Cal., William L. Osterhoudt (argued), of Singer & Osterhoudt, San Francisco, Cal., for defendants-appellants.

Edward P. Davis, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL, Senior Circuit Judge, SNEED, Circuit Judge, and EAST, ^* Senior District Judge.

EAST, Senior District Judge:

THE APPEALS:

Appellant Margarito O. Romero appeals his judgment of conviction and sentence to custody on eight counts of violating 18 U.S.C. § 2314 (stolen gold transported in interstate commerce) and one count of violating 18 U.S.C. § 371 (conspiracy).

Appellant Hugo Frederic Forster appeals his judgment of conviction and sentence to custody on five counts of violating § 2314 and one count of violating § 371.

The appeals were consolidated for hearing and disposition.

We note jurisdiction and affirm.

PROCEEDINGS IN THE DISTRICT COURT:

Romero and Forster were jointly indicted on October 13, 1976. The charges under §§ 2314 and 371 covered the period of November, 1973 through March, 1975. The District Court denied the several motions of Romero and Forster for the suppression of documentary evidence seized under federal search warrants from the possession of state law enforcement officers. The District Court also denied appellants' motions for dismissal on the grounds of speedy trial violations and abuse of the grand jury process. Romero and Forster were tried to the District Court without a jury upon a stipulation of facts and the admission in evidence of the various federally seized documents under illegal seizure challenge. The judgments of conviction and sentences to custody were duly entered. Romero and Forster are each at liberty pending appeals.

FACTS:

During 1973, the United States Secret Service uncovered information that R & F Metals (R & F), Romero and Forster's metal processing business, was shipping gold, believed to have been stolen from a mine in Nevada, to Chicago, Illinois. This information was subsequently provided to the South San Francisco Police Department which had been conducting its own investigation into R & F's gold business triggered by information from a local refinery.

In March, 1975, Detective Singleton of the South San Francisco Police Department contacted the Federal Bureau of Investigation (FBI), which then began its own investigation of R & F's gold trafficking. The FBI investigation was extensively pursued both on an independent basis and in conjunction with state law enforcement authorities.

The South San Francisco Police Department executed state search warrants upon the premises of Romero and Forster on May 2 and June 17, 1975, respectively, and seized all documents and records pertaining to the manner in which they conducted their businesses. During August and September, 1975, hearings were held in the state court resulting in the prosecutor's agreement to return all items not deemed by him to be relevant to the prosecution. This return was not fully accomplished until early 1976 after contempt proceedings had been instituted by Romero and Forster. Meanwhile, however, the police had segregated the documents deemed to be relevant and moved them from the police garage to Detective Singleton's office. Later, when approximately 70 to 80 percent of the documents had been returned to Romero and Forster, most of those documents retained were transferred from the police department to the prosecutor's office for use in the state prosecution.

In August, 1975 and before Romero and Forster had filed their state court motions to suppress the evidence, ¹ the records, at that time still in the police garage, were made available to the FBI and were examined by federal agents in connection with their independent investigation. Additionally, those documents found relevant by the police and transferred to Singleton's office were later re-examined.

On October 22, 1975, Romero and Forster were indicted in the Superior Court for San Mateo County, California for a variety of state offenses.

In late March of 1976, Judge Haverty of that Court suppressed the state search warrants and seizure solely on the ground that the warrants' description of the items to be searched for and seized was too broad. ² As a result of this ruling, the majority of the case against Romero and the entire case against Forster were dismissed.

On April 26, 1976, the FBI, under authorization of the United States Attorney's office, secured and executed three federal search warrants for Romero's home, Forster's business office, and the office of the state prosecutor. ³

The federal warrants were supported by affidavits which contained no significant information which was not available to the FBI prior to the issuance and execution of the state warrants. Detective Singleton aided in the preparation of the federal warrants and testified that he gave the FBI only information known to him before the state seizures.

Immediately prior to the execution of the federal warrants, the Assistant United States Attorney in charge of the federal investigation met with Judge Haverty to inform him of the pending search warrants for the state prosecutor's office, Romero's home, and Forster's business. Judge Haverty expressed no objection to the procedure to be utilized by the federal government in order to obtain the records and he did not indicate that he believed seizure pursuant to the federal warrants would violate the spirit of his order suppressing the evidence. On April 28, 1976, Judge Haverty ordered the records returned to their rightful owners.

ISSUES ON REVIEW:

We deem the dispositive issues to be:

1. Did the District Court err in denying Romero's and Forster's motions to suppress the evidence seized under the federal warrants?

2. Were Romero and Forster denied the right to a speedy trial in violation of the Sixth Amendment of the United States Constitution or were they denied due process by reason of prejudicial indictment delay in violation of the Fifth Amendment of the United States Constitution?

3. Did the District Court err in failing to dismiss the cause on grounds of abuse of the grand jury?

DISCUSSION:

I. Motion to Suppress the Fruits of the Federal Search Warrant.

Romero and Forster contend that the evidence introduced at trial is the direct "fruit" of the unlawful state seizure and was discovered and utilized through a direct exploitation of the illegal state seizure. As such, they contend, it must be suppressed. Appellants also assert that even if the federal warrant was not tainted by the illegal state seizure, the evidence must nevertheless be suppressed in order to effectuate the policy behind the exclusionary rule; I. e., the deterrence of official misconduct. See Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Janis, 428 U.S. 433, 458-59 n.35, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976).

In addressing the problem of whether the evidence sought to be suppressed was gathered through exploitation of an illegal search, the District Court, in a scholarly and well analyzed memorandum, applied the legal standard expressed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), ⁴ and concluded:

"By now it is well established that evidence unlawfully seized does not thereby become 'immune' from use by law enforcement agencies. Rather, so long as the evidence derives from a source independent of the prior illegality, it may be admitted into evidence."

We agree with that premise. In United States v. Ceccolini, 435 U.S. 268, 273-274, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978), the Court stated:

"The constitutional question under the Fourth Amendment was phrased in Wong Sun . . . as whether 'the connection between the lawless conduct of the police and the discovery of the challenged evidence has become "so attenuated as to dissipate the taint." ' Id. at 487, 491, 83 S.Ct. at 417. The question was in turn derived from the Court's earlier decision in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 454 (1939), where Mr. Justice Frankfurter stated for the Court:

" 'Here, as in the Silverthorne case, the facts improperly obtained do not " become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it" simply because it is used derivatively. 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319.

" 'In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.' "

On the factual issue of the illegal action taken by the state and any possible taint, the District Court found:

"An examination of the Affidavit attached to the State search warrant reveals that the facts permitting adequate specificity in the Federal warrant were known prior to the state seizure. . . .

". . . Similarly, by essentially restating the facts recited in the state affidavit, and thus known prior to the unlawful (state) seizure, the federal affidavit provided adequate untainted basis upon which to derive the descriptive terms employed by the federal warrant." (Emphasis in original).

The...